AFJAL ALI SHA @ ABJAL SHAUKAT SHAversusSTATE OF WEST BENGAL & ORS

1090                      [2023]REPORTS
                SUPREME COURT   2 S.C.R. 1090               [2023] 2 S.C.R.


 A                AFJAL ALI SHA @ ABJAL SHAUKAT SHA
                                         v.
                      STATE OF WEST BENGAL & ORS.
                   (Transfer Petition (Criminal) No. 409 of 2021)
 B                              MARCH 17, 2023
               [SURYA KANT AND J. K. MAHESHWARI, JJ.]
              Code of Criminal Procedure, 1973 – ss. 321, 406 –
       Constitution of India – Art. 139A – Supreme Court Rules, 2013 –
       Or. 39 – Petitioner-brother of deceased sought transfer of the
 C
       criminal trial pending in West Bengal to Assam – Victim-deceased
       was shot dead by unknown persons – Respondents-accused were
       charged u/s. 302 r/w s.120B of the IPC and u/ss. 25 and 27 of the
       Arms Act 1959 – Charge-sheet was filed – Trial commenced –
       Respondent no.2 (main accused) was in the custody – During
 D     pendency of trial, a notification issued by the State of West Bengal
       directing the Public Prosecutor to apply u/s.321 of Cr.P.C. and
       withdraw proceedings against respondents subject to consent of
       trial Court – Notification challenged before the High Court –
       Pursuant to the direction of the State, Public Prosecutor moved
       application before the trial Court for withdrawal of the prosecution
 E
       case – This application was taken up by the Link Judge presiding
       in the trial Court, despite case was listed for evidence – Link Judge
       was informed regarding the challenge to the notification in the High
       Court, regardless thereto, he heard the application and allowed the
       same – Respondents were acquitted – De-facto complainant filed
 F     writ petition before the Single Judge of the High Court, which set
       aside the notification of the State directing withdrawal of the case –
       Division Bench set aside the order and remanded the matter for
       fresh adjudication – Single Judge held that order of the Link Judge
       would not be acted upon and respondent no.2 was not be released
       from custody – Meanwhile, trial proceeded – Petitioner filed
 G
       application to declare the de-facto complainant hostile – However,
       the said application was rejected – Petitioner filed transfer petition
       – Petitioner alleged multiple abnormalities during the trial, such as
       change of Public Prosecutor four times and harassment meted out
       to the prosecution witnesses and relatives of the deceased – Held:
 H
                                       1090
AFJAL ALI SHA @ ABJAL SHAUKAT SHA v. STATE OF WEST 1091
                  BENGAL & ORS.

No legal necessity to transfer the trial outside the State of West       A
Bengal – More than 90 witnesses, most of them Bengali speaking
are yet to be examined – Transfer may cause serious impediment in
the deposition of those witnesses and some of them may be reluctant
to travel to a far away place – However, considering all facts and
circumstances, following directions issued: (i) FIR No.495/2019
                                                                         B
registered transferred from the Court of Additional Session Judge,
3rd Court, Tamluk, Purba Medinipur, West Bengal to the Court of
Chief Judge, City Sessions Court at Calcutta; (ii) Trial to be
conducted by the Chief Judge, City Sessions Court and case not to
be transferred to Additional Sessions Judge; (iii) Trial to be taken
on weekly basis; (iv) State directed to appoint a Special Public         C
Prosecutor on the recommendations of the Chief Judge, City Sessions
Court with prior approval of the High Court; (v) Wife of deceased
and petitioner and other crucial prosecution witnesses to be provided
with adequate security; (vi) De-facto complainant to be cross
examined by the Special Public Prosecutor; (vii) Respondent no.2
                                                                         D
or any other accused who are in custody to be transferred to Central
Jail at Calcutta; (viii) Respondent no.2 not to be enlarged on bail
till the conclusion of trial save and except by the High Court; (viii)
Portfolio Judge of the High Court to monitor and supervise the
trial proceedings.
      Code of Criminal Procedure, 1973 – s. 406 – The power of           E
transfer under Section 406, CrPC is to be exercised sparingly and
only when justice is apparently in grave peril and therefore can be
allowed only in exceptional cases considering the fact that transfers
may cast unnecessary aspersions on the State Judiciary and the
prosecution agency – Further the convenience of parties and              F
witnesses as well as the language spoken by them are also relevant
factors when deciding a transfer petition.
      Issuing directions, the Court
      HELD: 1. Section 406(2) of the CrPC provides that the
Supreme Court may transfer a case “only on the application of            G
the Attorney -General of India or of a party interested”.
Considering the apt and expansive interpretation of phrase ‘party
interested’ under Section 406(2) of the CrPC, it is held 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      H
1092            SUPREME COURT REPORTS                        [2023] 2 S.C.R.


 A     justice. The Respondents’ challenge to the locus standi of the
       Petitioner is thus rejected. [Paras 22, 24][1106-B-C, G]
              2. 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
 B     are reminded of Lord Hewart’s dictum in Rex v. Sussex Justices
       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”. 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
 C     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. The power of transfer under
       Section 406, CrPC is to be exercised sparingly and only when
 D     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. [Paras 25, 26, 27][1107-A-E]
             3. The convenience of parties and witnesses as well as the
 E     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. In some of the recent decisions including in Neelam
       Pandey v. Rahul Shukla, 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
 F     agency. [Paras 31, 32][1109-C-D]
             4. 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
 G     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

 H
AFJAL ALI SHA @ ABJAL SHAUKAT SHA v. STATE OF WEST 1093
                  BENGAL & ORS.

to travel to a far away place and, thus, the case of the Prosecution         A
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. [Para 35][1110-D-F]
                                                                             B
      5. Considering all the facts and circumstances, this Court
deems 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
                                                                             C
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 Additional Sessions Judge; (iii) The Chief
Judge, City Sessions Court shall endeavour to take up the trial              D
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
                                                                             E
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                F
behalf to influence, frighten or threaten the witnesses; (vi) The
De-facto Complainant who is also stated to be the eyewitness
and has allegedly resiled from his version recorded during the
examination-in-chief, shall be subjected to cross-examination by
the Special Public Prosecutor, for which the advocate engaged
                                                                             G
by the Petitioner may provide assistance to the learned Special
Public Prosecutor; (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,
                                                                             H
1094           SUPREME COURT REPORTS                      [2023] 2 S.C.R.


 A     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. [Para 36][1110-G-H; 1111-A-G]
 B           K. Anbazhagan v. State of Karnataka (2015) 6 SCC 86
             : [2015] 7 SCR 355; Amarinder Singh v. Parkash Singh
             Badal (2009) 6 SCC 260 : [2009] 9 SCR 194; Nahar
             Singh Yadav v. Union of India (2011) 1 SCC 307 :
             [2010] 13 SCR 851 – relied on.
 C           Surendra Pratap Singh v. State of Uttar Pradesh (2010)
             9 SCC 475 : [2010] 11 SCR 909; Abdul Nazar Madani
             v. State of Tamil Nadu (2000) 6 SCC 204 : [2000] 3
             SCR 1028; Sri Jayendra Saraswathy Swamigal (II) v.
             State of T. N. (2005) 8 SCC 771 : [2005] 4 Suppl. SCR
 D           556; Harita Sunil Parab v. State (NCT of Delhi) (2018)
             6 SCC 358 : [2018] 3 SCR 732; Swaati Nirkhi v. State
             (NCT of Delhi) 2021 SCC Online SC 202; Gurcharan
             Dass Chadha v. State of Rajasthan [1966] 2 SCR 678;
             Ashish Chandra v. Asha Kumari (2012) 1 SCC 680 :
             [2011] 13 SCR 417; K. Anbazhagan v. Superintendent
 E           of Police (2004) 3 SCC 767 : [2003] 5 Suppl. SCR
             610; Zahira Habibullah Sheikh v. State of Gujarat
             (2006) 3 SCC 374 : [2006] 2 SCR 1081; Maneka
             Sanjay Gandhi v. Rani Jethmalani (1979) 4 SCC 167 :
             [1979] 2 SCR 378; R. Balakrishna Pillai v. State of
 F           Kerala (2000) 7 SCC 129 : [2000] 3 Suppl. SCR 26;
             Neelam Pandey v. Rahul Shukla Transfer Petition (Crl)
             No. 298 of 2020, 22 February 2023 – referred to.
             Rex v. Sussex Justices [1924] 1 KB 256 – referred to.
                             Case Law Reference
 G
       [2010] 11 SCR 909           referred to     Para 17 (ix)
       [2015] 7 SCR 355            relied on       Para 17 (ix)


 H
AFJAL ALI SHA @ ABJAL SHAUKAT SHA v. STATE OF WEST 1095
                  BENGAL & ORS.

[2000] 3 SCR 1028              referred to      Para 19 (vii), 31           A
[2005] 4 Suppl. SCR 556        referred to      Para 19 (vii), 31
[2018] 3 SCR 732               referred to      Para 19 (vii), 31
[2010] 13 SCR 851              relied on        Para 19 (viii), 27 & 29
                                                                            B
[1966] 2 SCR 678               referred to      Para 19 (viii)
[2009] 9 SCR 194               relied on        Para 19 (viii), 26 & 28
[2011] 13 SCR 417              referred to      Para 19 (ix)
                                                                            C
[2003] 5 Suppl. SCR 610        referred to      Para 23
[2006] 2 SCR 1081              referred to      Para 26
[1979] 2 SCR 378               referred to      Para 26
[2000] 3 Suppl. SCR 26         referred to      Para 26, 30                 D
      CRIMINAL ORIGINAL JURISDICTION: Transfer Petition
(Criminal) No. 409 of 2021.
      Petition Seeking Transfer of Case Bearing S.T.No.1 (03) of 2020,
pending in A.S.J. 3rd at Tamluk, Purba Medinipur, West Bengal to            E
Competent Kamrup District Court in Assam.
      P. S. Patwalia, Sr. Adv., Nirnimesh Dube, Ms. Bansuri Swaraj,
Siddhesh Kotwal, Ms. Ana Upadhyay, Ms. Manya Hasija, Akash Singh,
Nihar Dharmadhikari, Ms. Sampriti Baksi, Advs. for the Petitioner.
                                                                            F
      Kapil Sibal, Neeraj Kishan Kaul, V Giri, Sr. Advs., Ravinder Singh,
Nipun Saxena, Srisatya Mohanty, Raveesha Gupta, Sanjeev Kaushik,
Ms. Mantika Haryani, Ms. Aparajita Jamwal, Himanshu Chakravarty,
Devvrat Singh, Ms. Muskan Surana, Ms. Somya Saxena, Archit Adlakha,
Ms. Astha Sharma, Rohit Agarwal, Goutam Dey, Partha Sil, Tavish
Bhushan Prasad, Ms. Sayani Bhattacharya, Arjun Ranganathan, Devesh          G
Mishra, Pallak Bhagat, Ms. Reshmi Rea Sinha, Abhishek Sarkar, Mani
Bhushan Sinha, Pranab Prakash, Soumya Dutta, Siddhant Upmanyu,
Advs. for the Respondents.


                                                                            H
1096            SUPREME COURT REPORTS                           [2023] 2 S.C.R.


 A           The Judgment of the Court was delivered by
             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
 B     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, 3rd
       Court, Tamluk, Purba Medinipur, West Bengal (hereinafter, ‘Trial Court’),
 C     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. FACTS
              2. The factual matrix is succinctly discussed below before delving
       into the aforesaid issue that arises for our consideration: -
 D
             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
 E     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, ‘De-facto
       Complainant’), who is stated to be the Deceased’s nephew and an
       eyewitness to the alleged occurrence.
 F            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 De-facto
       Complainant and the Petitioner. It is pertinent to mention that during the
       investigation, the police is also said to have recovered some incriminating
 G
       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
       with 120B of IPC and, under Sections 25 and 27 of Arms Act, 1959.
       Respondent Nos. 9 & 10 had previously been declared as proclaimed
 H
AFJAL ALI SHA @ ABJAL SHAUKAT SHA v. STATE OF WEST 1097
           BENGAL & ORS. [SURYA KANT, J.]

offenders. The trial commenced in September, 2020. The main accused,         A
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              B
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 De-facto Complainant before the
Calcutta High Court.                                                         C

       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        D
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 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. 2-        E
11 were acquitted.
       8. Meanwhile, the writ petition filed by the De-facto 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:             F
      “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–in-question subject to the
      consent of the Sessions Court. However, not an iota of reason          G
      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             H
1098             SUPREME COURT REPORTS                           [2023] 2 S.C.R.


 A           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
 B           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 Prosecutor-in- question to
             withdraw the case against the accused persons all of a
             sudden.
 C                  Despite the self-imposed restraint which this court
             imposes upon itself in the exercise of 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
 D           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
 E           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
 F     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,
 G     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 De-facto Complainant thereafter submitted an affidavit
       before the Trial Court expressing his ‘no-objection’ to the grant of bail to
 H
AFJAL ALI SHA @ ABJAL SHAUKAT SHA v. STATE OF WEST 1099
           BENGAL & ORS. [SURYA KANT, J.]

Respondent No. 2. Meanwhile, Respondent No. 2 appealed against the            A
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
                                                                              B
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 De-facto 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            C
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 De-facto Complainant,
his name was deleted and the Petitioner was transposed as the writ
petitioner. The Single Judge observed that the withdrawal of the writ         D
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.
                                                                              E
       12. Meanwhile the trial proceeded but during his cross-examination,
the De-facto Complainant is stated to have resiled from the statement
made during examination-in-chief but nevertheless he was not declared
hostile by the Public Prosecutor. Thereafter, the Petitioner filed an
application before the Trial Court to declare the De-facto Complainant
hostile and to allow the Petitioner’s lawyer to cross-examine him. The        F
Trial Court considered the said application and noted that the De-facto
Complainant had “made some statements in his cross examination,
which are not in conformity with the version of his examination-in-
chief”. The Petitioner’s application was however, rejected after
appreciation of the statutory provisions and the case law. The Trial Court    G
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
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1100             SUPREME COURT REPORTS                           [2023] 2 S.C.R.


 A           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 cross-examine PW1. The Ld. Advocate appointed by the
 B           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
 C     proceedings in the trial.
              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
 D     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
 E           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 scot-
             free without trial.”

 F            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
 G     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
       prosecution witnesses and relatives of the Deceased. The wife of the
 H
AFJAL ALI SHA @ ABJAL SHAUKAT SHA v. STATE OF WEST 1101
           BENGAL & ORS. [SURYA KANT, J.]

Deceased, Saida Sabana Banu Khatun, is alleged to have been attacked               A
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
                                                                                   B
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.                                                                             C

         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:                                                          D
         (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;
         (ii)    Respondent No. 2 has at least thirty-four (34) criminal cases     E
                 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 De-facto Complainant has been gained over during
                 the trial as is evident from his no-objection to the grant of     F
                 bail to Respondent No. 2; his prayer to withdraw the writ
                 petition challenging the State’s notification under Section
                 321, CrPC and the De-facto Complainant turning hostile
                 during his cross-examination;
         (iv)    The witnesses are being threatened and are turning hostile        G
                 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.           H
1102       SUPREME COURT REPORTS                        [2023] 2 S.C.R.


 A             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,
 B             the same was not done. Rather, he was kept in the hospital
               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
 C             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
 D     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
 E     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
 F     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
 G
       during deposition in Court.”
       (viii) In these circumstances, there is a genuine apprehension in
              the mind of the Petitioner, brother of the Deceased, that
              they would not receive free and fair justice in the State of
              West Bengal as the prosecution is compromised;
 H
AFJAL ALI SHA @ ABJAL SHAUKAT SHA v. STATE OF WEST 1103
           BENGAL & ORS. [SURYA KANT, J.]

          (ix)   Reliance has been placed on Surendra Pratap Singh v.             A
                 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
                                                                                  B
                 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        C
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             D
West Bengal and Mr. V. Giri, learned senior counsel on behalf of
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       E
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      F
                 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           G
                 facilities, such as smartphone, headphones etc. are not
                 based upon correct facts;


1
    Surendra Pratap Singh v. State of Uttar Pradesh (2010) 9 SCC 475.
2
    K. Anbazhagan v. State of Karnataka (2015) 6 SCC 86.                          H
1104                SUPREME COURT REPORTS                             [2023] 2 S.C.R.


 A            (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
 B                    not be done, is made out.
              (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
 C                    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
 D                    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
 E                    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
 F                    wherein this Court considered the convenience of the
                      Prosecution, other accused persons, the witnesses and the
                      larger interest of society while deciding a transfer petition,
                      has been pressed into aid. Other cases have also similarly
                      been cited4;
 G            (viii) Reliance has been placed on Nahar Singh Yadav v. Union
                     of India5 wherein this Court noted that the power under
       3
         Abdul Nazar Madani v. State of Tamil Nadu (2000) 6 SCC 204.
       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.
 H     5
         Nahar Singh Yadav v. Union of India (2011) 1 SCC 307.
AFJAL ALI SHA @ ABJAL SHAUKAT SHA v. STATE OF WEST 1105
           BENGAL & ORS. [SURYA KANT, J.]

               Section 406, CrPC is to be exercised sparingly and that            A
               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             B
               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     C
               influence. The Deceased himself is stated to have had
               multiple criminal cases pending against him;
       (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;                     D
       (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            E
               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               F
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,
                                                                                  G
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

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                                 H
1106                SUPREME COURT REPORTS                                [2023] 2 S.C.R.


 A     the preliminary objection raised by the respondents on the locus standi
       of the petitioner in seeking transfer of the subject trial.
                 C.1. LOCUS STANDI OF THE PETITIONER
              22. Section 406(2) of the CrPC provides that the Supreme Court
 B     may transfer a case “only on the application of the Attorney-General of
       India or of a party interested”.
              23. In the case of K. Anbazhagan v. Superintendent of Police8,
       this Court discussed the meaning of expression “a party interested” under
       Section 406, CrPC and held as follows:
 C
                 “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
 D               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
 E
                 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
 F               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 in
 G     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.


       8
 H         K. Anbazhagan v. Superintendent of Police (2004) 3 SCC 767.
AFJAL ALI SHA @ ABJAL SHAUKAT SHA v. STATE OF WEST 1107
           BENGAL & ORS. [SURYA KANT, J.]

       C.2. GROUNDS FOR TRANSFER                                                  A
       25. Coming to the second limb of the contentions raised on behalf
of the parties, we may firstly notice some of the well-defined 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             B
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      C
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
                                                                                  D
       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            E
be justiciably invoked.
      28. In Amarinder Singh v. Parkash Singh Badal13, this Court
observed as follows:
             “19. Assurance of a fair trial is the first imperative of            F
       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
9
  Rex v. Sussex Justices [1924] 1 KB 256.
10
   Zahira Habibullah Sheikh v. State of Gujarat (2006) 3 SCC 374;
                                                                                  G
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.
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.                       H
1108                SUPREME COURT REPORTS                           [2023] 2 S.C.R.


 A               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 India14 after analysing
       the case-law, this Court enumerated the basic principles of the power of
 B     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 sub-sections (2) and (3) of the said section and on
 C               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
 D               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
 E               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;
 F
                       (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 non-official witnesses;
 G
                      (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
       14
 H          Nahar Singh Yadav v. Union of India (2011) 1 SCC 307.
AFJAL ALI SHA @ ABJAL SHAUKAT SHA v. STATE OF WEST 1109
           BENGAL & ORS. [SURYA KANT, J.]

              (v) existence of some material from which it can be                      A
       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 Kerala15, this Court
noted the crucial separation of powers between the judiciary and the                   B
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                      C
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                   D
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 u-turn with a view to help the main                   E
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               F
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
tearinghurry in accepting the application of the Public Prosecutor and                 G
15
   R. Balakrishna Pillai v. State of Kerala (2000) 7 SCC 129.
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].                                                                        H
1110                 SUPREME COURT REPORTS                         [2023] 2 S.C.R.


 A     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 pro-active exercise of appellate/revisional/writ
       jurisdiction by the High Court. Not only was the State Government’s
 B     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
 C     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 outside the State
 D
       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
 E     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.
 F
             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,
 G                     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
 H                     Additional Sessions Judge.
AFJAL ALI SHA @ ABJAL SHAUKAT SHA v. STATE OF WEST 1111
           BENGAL & ORS. [SURYA KANT, J.]

         (iii)   The Chief Judge, City Sessions Court shall endeavour to            A
                 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       B
                 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        C
                 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 De-facto Complainant who is also stated to be the eye-
                                                                                    D
                 witness and has allegedly resiled from his version recorded
                 during the examination-in-chief, 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.
         (vii) Respondent No. 2 or any other accused who are in custody             E
               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.                                                  F
         (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.                                                                              G
         38. Pending applications, if any, also stand disposed of accordingly.

Ankit Gyan                                                     Directions issued.
(Assisted by : Mahendra Yadav, LCRA)
                                                                                    H