Holding

Section 3 of the Transfer of Prisoners Act, 1950 does not impede the Supreme Court from ordering the transfer of an accused and, under Article 142, the Court may direct such transfer and video‑conferencing to secure a free and fair trial.

Summary

The petitioners, led by Asha Ranjan, sought the transfer of accused M. Shahabuddin, a notorious history‑sheeter involved in the murder of the petitioner's husband and other crimes, from Siwan Jail in Bihar to Tihar Jail in Delhi, and the conduct of his pending trials via video‑conferencing. The core issue was whether the Supreme Court, exercising powers under Articles 32, 142 and 144 of the Constitution, could direct such a transfer despite Section 3 of the Transfer of Prisoners Act, 1950, and whether this would infringe the accused's right to a fair trial under Article 21. The Court held that Section 3 does not bar the Court from ordering a transfer and that the Court’s plenary power under Article 142 can be used to ensure a free and fair trial, balancing the rights of the accused with the victims' and society’s interests. Accordingly, the Court directed the transfer to Tihar Jail and ordered that the pending trials be conducted by video‑conferencing, while also directing the State to comply with the order.

Issues considered

Whether the Supreme Court can, under Articles 32, 142 and 144, direct the transfer of an accused from one State jail to another despite the provisions of the Transfer of Prisoners Act, 1950.
Whether such a transfer would violate the accused's right to a fair trial under Article 21 of the Constitution.
Whether the Court’s power under Article 142 can be exercised without contravening substantive statutory provisions.
Whether pending criminal trials can be conducted through video‑conferencing to ensure a fair trial.

Legislation cited

Code of Criminal Procedure, 1973s. 167, s. 309, s. 320
Prisoners Act, 1900s. 29
Prisons Act, 1894s. 26
Special Police Establishment Act, 1946
Transfer of Prisoners Act, 1950s. 3

Subjects

fair trialArticle 21Article 142Transfer of Prisoners Actvideo conferencingvictim rightshistory‑sheetercriminal justiceconstitutional lawright to lifeArticle 32

Judgment

(2017] 1 S.C.R. 945

ASHA RANJAN A
v.
STATE OF BIHAR & ORS.
(Writ Petition (Criminal) No. 132of2016)
FEBRUARY 15, 2017 B

(DIPAK MISRA AND AMITAVA ROY, JJ.]
Constitution of India:
Arts. 32, 142 and 144 - Power under - Issuance of direction
to transfer accused from one State to another - Brutal murder of c
petitioner's husband (senior reporter) by group of persons.
respondent no. 3 and 4 and other accused persons - Third
respondent, a dreaded criminal-cum-politician. declared history-
sheeter type 'A' (who is beyond reform) - Till today booked in 75
cases, out of which convicted in JO cases and facing trial in 45
D
cases - One such case relates to murder of the third son of the
petitioner and other 11~ 1 0 are of atte111pt to 111urder ~ Jt'rit petition by
petitioner seeking transfer of third respondent from Siwan Jail to
Tihar Jail - Held: Section 3 doe5 not create impediment on the part
of the court to pass an order of transfer of on accused or a convict
fiwn one jail in o State to another prison in another State because E
it creates a bar on the exercise of power on the executive only -
Court in exercise of power u!Art. 142 cannot curtail fundamental
rights of the citizens conferred under the Constitution and pass
orders in violation of substantive provisions, yet when a case of the
instant nature arises, it may issue appropriate directions so that
F
criminal trial is conducted in accordance with law - It is the
obligation and duty of this Court to ensure free and fair trial -
Thus, State of Bihar directed to transfer the third respondent from
Siwan Jail, District Siwan to Tihcr Jail, Delhi, ofter giving prior
intimation for his transfer in Delhi - Pending trials would be
conducted by video conferenc;nr: - transfer of Prisoners Act, 1950 G
- s.3.
Art. 21 - Fair trial - Concepl a/-Held: Is facet of Art. 21 -
Right to fair trial is not singularly absolute, os perceived, from the
perspective of the accused - It tokes in its ambit and sweep the
H
945
946 SUPREME COURT REPORTS [2017] 1 S.C.R.

A right of victim(s) and society at large - These factors would
collectively allude and constitute Rule of Law-free and fair trial -
When there is intra-conflict-with the interest of victim or collective/
interest of society in respect of the same fundamental right, it is the
obligation of the constitutional courts to weigh the balance in certain
circumstances, interest of the society as a whole, when it would
B
promote and instill Rule of Law - Fair trial is not what the accused
wants in the name of fair trial - Fair trial must soothe the ultimate
;ustice, sought individually, but is subservient and would not prevail
when fair trial requires transfer of criminal proceedings.
Disposing of Writ Petition (Criminal) No.147 of 2016 and
c partly disposing of Writ Petition (Criminal) No. 132 of 2016, the
Court
HELD: 1.1 On a stndied analysis of the concept of fair
trial as a facet of Article 21 of the Constitution, it is noticeable
that in its ambit and sweep it covers interest of the accused,
D prosecution and the victim. The victim, may be a singular person,
who has suffered, but the injury suffered by singular is likely to
affect the community interest. Therefore, the collective under
certain circumstances and in certain cases, assume the position
of the victim. They may not be entitled to compensation as
E conceived under section 357 A CrPC but their anxiety and concern
of the crime and desire to prevent such occurrences and that the
perpetrator, if guilty, should be punished, is a facet of Rule of
Law. And that has to be accepted and ultimately protected. [Para
44] [982-C-E]

F 1.2 The right under Article 21 is not. absolute. It can be
curtailed in accordance with law. The curtail.ment of the right is
permissible by following due procedure which can withstand the
test of reasonableness. The submission that if the accused is
transferred from jail in Siwan to any other jail outside the State of
Bihar, his right to fair trial would br smothered and there will be
G an inscription of an obituary of fair trial and refutation of th6 said
proponement, that the accused neither has monopoly over the
process nor does he has any exclusively absolute right, requires
a balanced resolution. The opposite arguments are both
predicated on the precept of fair trial and the said scale would
H
ASHA RANJAN v. STATE OF BIHAR & ORS. 947

decide this controversy. The interest of the victim is relevant A
and has to be taken into consideration. The contention that if the
accnsed is not shifted out of Siwan Jail, the pending trials would
result in complete farce, for no witness would be in a position to
depose against him and they, in total haplessness, shall be bound
to succumb to the feeling of accentuated fear that is created by
B
his unseen tentacles, is not an artifice and cannot be ignored. In
suc·h a situation, the Court should balance the rights between
the accused and the victims and thereafter, weigh on the scale of
fair trial whether shifting is necessary or not. It would be travesty
if the said assertion is ignored that if the respondent No. 3 is not
shifted from Siwan Jail and the trial is held at Siwan, justice, which c
is necessitous to be done in accordance with law, would suffer an
unprecedented set back and the petitioners would remain in a
constant state of fear that shall melt their bones. This would imply
balancing of rights. [Para 45] (982-E-H; 983-A-B]
1.3 Circumstances may emerge that may necessitate for D
balancing between intra-fundamental rights. It has been distinctly
understood that the test that has to be applied while balancing
the two fundamental rights or inter fundamental rights, the
principles applied may be different than the principle to be applied
in intra-conflict between the same fundamental right. In the instant
case, the accused has a fundamental right to have a fair trial under E
Article 21. Similarly, the victims who are directly affected and
also form a part of the constituent of the collective, have a
fundamental right for a fair trial. Thus, there can be two individuals
both having legitimacy to claim or assert the right. The factum of
legitimacy is a primary consideration. No fundamental right is F
absolute and it can have limitations in certain circumstances.
Thus, permissible limitations are imposed by the State. The said
limitations are to be within the bounds of law. However, when
there is intra-conflict of the right conferred under the same Article,
like fair trial, the test that is required to be applied, would be
"paramount collective interest" or "sustenance of public G
confidence in the justice dispensation system". Thus, if the
collective interest or the public interest that serves the public
cause and further has the legitimacy to claim or assert a
fundamental right, then only it can put forth that their right should
H
948 SUPREME COURT REPORTS [20 I 7] I S.C.R.

A be protected. There can be no denial of the fact that the rights of
the victims.for a fair trial is an inseparable aspect of Art. 21 and
when they assert that right by themselves as well as the part of
the collective, conception of public interest gets galvanised. The
accentuated public interest in such circumstances has to be given
primacy, for it furthers and promotes Rule of Law. It may be
B
clarified at once that test of primacy which is based on legitimacy
and the public interest has to be adjudged on the facts of each
case and cannot be stated in abstract terms. It will require studied
scanning of facts, the competing interests and the ultimate
perception of the balancing that would snbserve the larger public
c interest and serve the majesty of rule of law.[Para 53] (986-F-H;
987-A-B, C-F]
1.4 There may be a perception that if principle of primacy
is to be followed, then the right of one gets totally extinguished·.
It has to be borne in mind that total extinction is not balancing.
D When balancing act is done, the right to fair trial is not totall:·
crippled, but it is curtailed to some extent by which the accuse•
gets the right of fair trial and simultaneously, the victims feel th~t
the fair trial is conducted aud the court feels assured that there
is a fair trial in respect of such cases. That apart, the faith of the
collective is reposed in the criminal justice dispensation system
E and remains anchored. [Para 54] [987-H; 988-A-B]
1.5 While appreciating the concept of public interest in
such a situation, the Court is required to engage itself in
construing the process of fair trial which ultimately subserves
the cause of justice and remains closer to constitutional
F sensibility. An accused, in the name of fair trial, cannot go on
seeking adjournments defeating the basic purpose behind the
conducting of a trial as enshrined under Section 309 Cr.P.C. He
cannot go on filing applications under various provisions of
Cr.P.C., whether tenable or not, and put forth a plea on each and
every occasion on the bedrock that principle of fair trial sanctions
G
it. In such a situation, the prosecution which represents the cause
of collective and the victim, who fights for reinedy of his individual
grievance, is allowed to have a say and the court is not expected
to be a silent spectator. Thus, the discord that arises when there
is intra-conflict in the same fundamental right especially, in the
H context of fair trial, it has to be resolved regard being had to the
ASHA RANJAN v. STATE OF BIHAR & ORS. 949

obtaining fact situation. An accused who has been able to, by his A
sheer presence, erode the idea of safety of a witness in court or
for that matter impairs and rusts the faith of a victim in the ultimate
justice and such erosion is due to fear psychosis prevalent in the
atmosphere of trial, is not to be countenanced as it is an
unconscionable situation. Such a hazard is not to be silently
B
suffered because the "Majesty of Justice" does not allow such
kinds of complaints to survive. [Para 55] [988-C-F]

1.6 There can be no doubt that equity cannot override
law. Section 3 of the Transfer of Prisoners Act, 1950 bestows
power on the State Government to transfer an accused to another c
State after consulting the other State. Such an action by the State
has to be totally controlled by the circumstances which find
mention under Section 3. When the State passes an order with
the concurrence of another State, it is obliged to be bound by the
circumstances which are postulated under Section 3(1), but when
the issue of fair trial emerges before the constitutional court, D
Section 3 cannot be regarded so as to restrain the court from
what is mandated and required for a free and fair trial. The
statutory power is not such which is negative and curtails power
of the court to act in the interest of justice, and ensure free and
fair trial, which is of paramount importance for the Rule of Law. It E
only controls the power of the executive. [Para 68] [998-G-H;
999-A-C]
1. 7 The third respondent has already been declared as a
history-sheeter type 'A'(who is beyond reform). Till today, he
has been booked in 75 cases, out of which he had been convicted F
in 10 cases and presently facing trial in 45 cases. He has been
acquitted in 20 cases. Out of 45 cases, 21 cases are those where
maximum sentence is 7 years or more. He has been booked in
15 cases where he has been in custody and one such case relates
to the murder of the third son of the petitioner and other two
cases are of attempt to murder. He is an influential person of the G
locality, a representative to the Legislative Assembly on two
occasions and elected as a Member of Parliament four times.
This is not a normal and usual case. It has to be dealt with in the
said factual matrix. A history-sheeter has criminal antecedents
and sometimes becomes a terror in society. (Para 69] (999-C-F] H
950 SUPREME COURT REPORTS (20 I 7] I S.C.R.

A 1.8 The conclusions and directions are as follows:
(i) The right to fair trial is not singularly absolute, as is
perceived, from the perspective of the accused. It takes
in its ambit and sweep the right of the victim(s) and the
society at large. These factors would collectively allude
B and constitute the Rule of Law, i.e., free and fair trial.
(ii) The fair trial which is constitutionally protected as a
substantial right under Article 21 and also the statutory
protection, does invite for consideration a sense of conflict
with the interest of the victim(s) or the collective/interest
c of the society. When there is an intra-conflict in respect of
the same fundamental right from the true perceptions, it
is the obligation of the constitutional courts to weigh the
balance in certain circumstances, the interest of the society
as a whole, when it would promote and instill Rule of Law.
A fair trial is not what the accused wants in the name of
D fair trial. Fair trial must soothe the ultimate justice which
is sought individually, but is subservient and would not
prevail when fair trial requires transfer of the criminal·
proceedings.
(iii) A wrongful act of an individual cannot derogate the
E right of fair trial as that interest is closer, especially 'in
criminal trials, to the Rule of Law. An accused ca~not be
permitted to jettison the basic fundamentals of trial in the
name of fair trial.
(iv) The weighing of balance between the two perspectives
F in case of fair trial would depend upon the facts and
circumstances weighed on the scale of constitutional norms
and sensibility and larger public interest.
(v) Section 3 of the 1950 Act does not create an impediment
on the part the court to pass an order of transfer of an
G accused or a convict from one jail in a State to another
prison in another State because it creates a bar on the
exercise of power on the executive only.
(vi) The Court in exercise of power under Article 142 of
the Constitution cannot curtail the fundamental rights of
H
ASHA RANJAN v. STATE OF BIHAR & ORS. 951

the citizens conferred under the Constitution and pass A
orders in violation of substantive provisions which are
based on fundamental policy principles, yet when a case
of the present nature arises, it may issue appropriate
directions so that criminal trial is conducted in accordance
with law. It is the obligation and duty of this Court to ensure
B
free and fair trial.
(vii) The submission that this Court in exercise of equity
jurisdiction under Article 142 of the Constitution cannot
transfer the accused from Siwan Jail to any other jail in
another State is unacceptable as the basic premise of the
said argument is erroneous, for while addressing the issue c
of fair trial, the Court is not exercising any kind of
jurisdiction in equity. [Para 74] [1003-D-H; 1004-A-F]
1.9 The State of Bihar is directed to transfer the third
respondent from Siwan Jail, District Siwan to Tihar Jail, Delhi
and hand over the prisoner to the competent officer of Tihar Jail D
after giving prior intimation for his transfer. in Delhi. The
authorities escorting the third respondent from Siwan·Jail to Tihar
Jail would strictly follow the rules applicable to the transit
prisoners and no special privilege would be extended. The transfer
shall take place within a week hence. Thereafter, the trial in E
respect of pending trials shall be conducted by video conferencing
by the concerned trial court. [Para 75] [1004-F-H]
State of MP. & another v. Thakur Bharat Singh AIR
1967 SC 1170 : [1967] SCR 454 - held inapplicable.
State of W.B. & Ors. v. Committee for Protection of F
Democratic Rights, West Bengal & Ors. (2010) 3 SCC
571 : [2010] 2 SCR 979 - relied on.
Chandrakeshwar Prasad v. State of Bihar and Anr.
(2016) 9 SCC 443; Sunil Bat.ra (JI) .,v. Delhi
Administration (1980) 3 SCC 488: [1980] 2 SCR 557; G
State of Maharashtra & ors v. Saeed Sohai'/ Sheikh
and Ors. (2012) 13 SCC 192 : [2012] 11 SCR 916;
Sunil Batra v. Delhi Administration & Ors. (1978) 4
SCC 494 : [1979] 1 SCR 392; D. Bhuvan Mohan
H
952 SUPREME COURT REPORTS [2017] I S.C.R.

A Patnaik & Ors v. State of A.P. & Ors. (1975) 3 SCC
185 : [1975] 2 SCR 24; J Jayalalithaa & Ors " State
of Karnataka & Ors. (2014) 2 SCC 401; Maneka
Sanjay Gandhi & another v. Rani Jethmalani (1979)
4 SCC 167 : 11979] 2 SCR 378; Manu Sharma v.
State (NCT of Delhi) (2010) 6 SCC 1 : (2010] 4 SCR
B
103; Mohd. Hussain @ Julfikar Ali v. The State (Govt.
of NCT) Delhi (2012) 9 sec 408 : [2012] 10 SCR
480; Zahira Habibulla H Sheikh v. State of Gujarat
(2004) 4 SCC 158 : (2004] 3 SCR 1050; Bablu Kµmar
and Ors. v. State of Bihar and Anr. (2015) 8 SCC 787
c : (2015] 8 SCR 512; State of Haryana " Ram Mehar
and Ors. (2016) 8 SCC 762; Sakal Paper (PJ Ltd. &
Ors. v. Union of India & another AIR 1962 SC 305 :
(1962) SCR 842; Subramanian Swamy v. Union of
India (2016) 7 SCC 221 : (2016] 3 SCR 865; Mr. 'X'
v. Hospital 'Z' (1998) 8 SCC 296 : [1998] 1 Suppl.
D
SCR 723; Rev. Stainislaus v. State of MP. and Ors.
(1977) 1 SCC 677 : (1977] 2 SCR 611; Vikas Yadav
v. State of UP. & Ors. (2016) 9 SCC 541; Prem Chand
Garg & another v. Excise Commr. AIR 1963 SC 996:
[1963] Suppl. SCR 885; A.R. Antulay v. R.S. Nayak &
E another (1988) 2 SCC 602: (1988] 1 Suppl. SCR l;
R.S. Nayak v. A.R. Antulay (1984) 2 SCC 183 : (1984]
2 SCR 495; Supreme Court Bar Association " Union
of India and Anr. (1998) 4 SCC 409 : (1998] 2 SCR
795; Delhi Judicial Service Association v. State of
Gujarat & ors. (1991) 4 SCC 406 : (1991] 3 SCR
F
936; Re, Vinay Chandra Mishra (1995) 2 SCC 584 :
[1995] 2 SCR 638; Narendra Champaklal Trivedi v.
State of Gujarat (2012) 7 SCC 80 : [2012] 6 SCR
165; Vishweshwaraiah Iron & Steel Ltd. v. Abdul Gani
& Ors. (1997) 8 SCC 713 : [1997] 5 Suppl. SCR 119;
G Keshabhai Malabhai Vankar v. State of Gujarat 1995
Supp. (3) SCC 704; Laxmidas Morarji v. Behrose
Darab Madan (2009) 10 SCC 425 : [2009] 14 SCR
777; Shamsu Suhara Beevi v. G Alex and another
(2004) 8 SCC 569 : (2004] 3 Suppl. SCR 653; Neeru
Yadav v. State of UP. and Anr. (2014) 16 SCC 508 :
H
ASHA RANJAN v. STATE OF BIHAR & ORS. 953

[2014] 12 SCR 453; Kalyan Chandra Sarkar v. Rajesh A
Ranjan alias Pappu Yadav and another (2005) 3 SCC
284; State of Karnataka v. State of A.P. & Ors. (2000)
9 SCC 572 : [2000] 3 SCR 301; State of W.B. & Ors
v. Sampat Lal & Ors. (1985) 1 SCC 317 : [1985] 2
SCR 256; Ashok Kumar Gupta & another v. State of
B
U.P. & Ors. (1997) 5 sec 201 : [1997] 3 SCR 269 -
referred to.
Case Law Reference

(2016) .9 sec 443 referred to Para 12
c
[1980] 2 SCR 557 referred to Para 22

[2012] 11 SCR 916 referred to Para22

[1979] 1 SCR 392 referred to Para 23
D
[1975] 2 SCR 24 referred to Para 25

c2014) 2 sec 401 referred to Para 33

[1979] 2 SCR 378 referred to Para 34
E
[2010] 4 SCR 103 referred to Para 37

[2012] 10 SCR 480 referred to Para 38

[2004] 3 SCR 1050 referred to Para38
F
[2015] 8 SCR 512 referred to Para 42

(2016) 8 sec 762 referred to Para 43

[1962] SCR 842 referred to Para 46

[2016] 3 SCR 865 referred to Para 47 G

[1998] 1 Suppl. SCR 723 referred to Para 48

[1977] 2 SCR 611 referred to Para 50

H
954 SUPREME COURT REPORTS [2017] I S.C.R.

A (2016) 9 sec 541 referred to Para 53

[1967] SCR 454 referred to Para 56

[2010] 2 SCR 979 referred to Para57

B [1963] Suppl. SCR 885 referred to Para 59

[1988] 1 Suppl. SCR 1 referred to Para 60

[1984] 2 SCR 495 referred to Para 60

c [1998) 2 SCR 795 referred to Para 63

[1991] 3 SCR 936 referred to Para 64

[1995) 2 SCR 638. referred to Para 64

[2012) 6 SCR 165 referred to Para 65
D
[1997] 5 Suppl. SCR 119 referred to Para 65

1995 Supp. (3) sec 704 referred to Para 65

[2009) 14 SCR 777 referred to Para 65
E
[2004) 3 Suppl. SCR 653 referred to Para 66

[2014] 12 SCR 453 referred to Para 69

(2005) 3 sec 284 referred to Para 70
F
[2000] 3 SCR 301 referred to Para 72

[1985] 2 SCR 256 referred to Para 72

[1997] 3 SCR 269 referred to Para 72
G
CRIMINAL ORIGINAL JURTSDICTION: Writ Petition
. (Criminal) No. 132of2016.
Under Article 32 of the Constituion oflndia
WITH
H
·ASHA RANJAN v. STATE OF BIHAR & ORS. 955

WP. (CrL) No. 147 of2016. A
Shanti Bhushan, Sr. Adv., Kislay Pandey, Ankur Gogia, Ms. Manju
Jelley, Rohit Kumar Singh, Ms. Vartika Seth, Siddharth Garg, Prashant
Bhushan, Advs. for
the Petitioner.
P. S. Narasimha, ASG, Surendra Singh, Shekhar Naphade, Sr.
Advs., Shamik Sanjanwala, Pradieep Kumar Dex, T N. Razdan, Gopal B
Singh, Manish Kumar, Dhirendra Singh P_arrnar, S.usheel Tomar, Ms.
Aliha R. Sharma, M. Shoeb Alam, Ms. Fauzia Shakil, UjjwaJ Singh,
Mojahid Karim Khan,' Advs. for
the Respondents.
The Judgment of the' Court was delivered by
c
DIPAK MISRA, J. L Regard being had to the similitude of
prayers and considering the commonality of issues exposited in these
W.rit Petitions, they were finally hea(Jtogether. The principal issue raised
is disposed of by this singular order. !tis necessary to note that in. Writ
Petition (Criminal) No. 132 of2016 preferred by Asha Ranjan, it has
been prayed for issue ofappropriate directions to the Central Bureau of D
Investigation (CBI) to take over the investigation in connection with FIR
No. 362/16 dated 13.05.2016 under Police Station Nagar Thana, Siwan,
District Siwan under Sections 302/1208 read with Section 34 of the
Indian Penal Code (!PC); to _transfer the entire proceedings and trial in
FIR No. 362/16 dated 13.05.2016 registered under the same Police E
Station for the same offences from Siwan, Bihar to Delhi; to call for the
status report in the investigation relating to FIR No. 362/16 dated
I 3.05.20 I 6; to grant appropriate compensation to the petitioner and her
family members and to ensure their security: That apart, there is also a
prayer to register FIR against respondent Nos. 3 and 4 for c'onspiracy
and harboring and sheltering the proclaimed offenders in FIR _No. 362/ F
16 dated 13.05.2016. In this Writ Petition, at a subsequent stage, Criminal
Miscellaneous Petition No. 17101 of2016 has been filed for transfer of
respondent No. 3, M. Shahabuddin, from Siwan Jail, Bihar to a jail in
Delhi. During the pendency of this case, Writ Petition (Criminal) No.
147 of2016 came to be filed. ln the said Writ Petition, the prayer is to G
issue a direction t-0 transfer respondei1t No. 3, M. Shahabuddin, to a jail
·outside the State_of Bihar and to issue further directions for conducting
of.the trial in pending· cases against him through video conferencing.
Thus, the prayers in Writ Petition (Criminal) No. 14 7 of 2016 are two

H
956 SUPREME COURT REPORTS [2017] l S.C.R.

A fold and in Writ Petition (Criminal) No. 132of2016 are manifold.
2. It is apposite to state here that both the cases, as stated earlier,
were heard together and learned. counsel for the parties addressed the
Court with regard to sustainability of prayer for transfer of the cases
pending against respondent No. 3, Shahabuddin, from Si wan Jail to a jail
B in Delhi and conducting of the trial through video conferencing. As far
as lodging of FIR against respondent No. 4 in Writ Petition (Criminal)
No. 132 of2016 is concerned, hearing on the said aspect was deferred
which is clear from the order passed on January 17, 2017 in Writ Petition
(Criminal) No. 132 of 2016. We think it appropriate to reproduce the
sa1ne:-
c
"In this writ petition, though the prayers have been couched in a
manifold manner, there are basically three prayers, namely, the
transfer of proceedings from Siwan, Bihar, to Delhi; secondly, to
issue a direction to C.B.I. to investigate into certain crimes; and
thirdly, to pass appropriate direction to register an F.l.R. against
D the respondent Nos.3 and 4.
As far as the direction to C.B.I. for taking investigation is
concerned, this Court had already issued the directions and,
therefore, the said prayer does not any more survive.

E As far as the transfer of the proceedings is concerned which is
associated with the transfer of the accused, we are going to deal
with the same in the criminal miscellaneous petition filed in this
writ petition and Writ Petition (Cr!.) No.14 7 of20 I 6.
As far as the third prayer is co9cemed, it is seriously opposed by
. Mr. Surendra Singh, learned senior counsel for the respondent
F
No.4 on the ground that there is no warrant or justification for
lodging of an F.l.R. and, in any case, no case is made out and
what has been stated is solely on the basis of the photographs
published in the newspapers. Be that as it may, as far as this
prayer is concerned, it shall be dealt with on the another date as
G we have reserved the order regarding transfer of the respondent
No.3 from Siwan Jail, Bihar to another jail, which is similar to
the prayer in the Writ Petition (Cr!.) No.147 of2016. The judgment
shall be delivered dealing with the said aspects and the third
prayer shall be considered on another day, which shall be fixed
at a later stage."
H
ASHA RANJAN v. STATE OF BIHAR & ORS. 957
[DIPAK MISRA, J.]

3. Thus, we are presently required to deal with the transfer of A
the third respondent, M. Shahabuddin from the Si wan Jail, Bihar to a Jail
in Delhi ~eeping in view the averments made in Writ Petition (Criminal)
No. 147 of2016 and the assertions made in the application filed in Writ
Petition (Criminal) No. 132 of2016.
4. The factual matrix in Writ Petition (Criminal) No. 132 of2016, B
as unfolded, is that on I 3.5.2016 petitioner's husband, namely, Sh. Rajdev
Ranjan, Senior Reporter(Journalist Incharge, Dainik Hindustan, Siwan
Bureau, Bihar) was shot dead as he received five bullet injuries in his
head and other parts of his body and FIR No. 362/16 dated I 3.5.16 was
registered under PS Nagar Thana, Dist. Siwan forthe offences punishable
under Sections 302/J 20(B) and 34 ofIPC.
c
5. On 13.5.2016, the petitioner informed the police that one
notorious criminal, Shahabuddin, and his henchmen were involved in the
murder of her husband but the police deliberately did not include the
name of Shahabuddin in the list of accused persons. Thereafter, as
the matter stands today, the investigation of the said case has been D
transferred to the CBI. It is asseverated that in the mean time certain
persons have been arrested and some have surrendered to custody.
6. The factual expose of the murder of the husband of the
petitioner has a narrative that goes back to the year 2005. The husband
of the petitioner, a journalist, it is averred, had written various news E
reports pertaining to serious and substantive criminal activities of said
Shahabuddin who had threatened to eliminate him and his family
members. Undeterred he kept on writing various investigative news
articles and reports in respect of murder of.the three sons of one Siwan
resident, namely, Chanda Babu, which eventually led to the arrest of F
Shahabuddin and after conclusion of the trial he stood convicted forthe
offence under Section 302 !PC and sentenced to undergo life
imprisonment. It is apt to note that during the trial of the said case,
Shahabuddin and his shooters had constantly threatened the petitioner's
husband with death threats to him and the family members. As the
narration has been undraped, petitioner's husband highlighted about the G
murder of one Shrikant Bharti by publishing news articles and at that
stage on 13.5.2016 petitioner's husband got a phone call from an unknown
person on his mobile about 7. I 5 p.m. and soon thereafter he left the
office and started moving towards the Station Road. About 7.30 p.m.
H
958 SUPREME COURT REPORTS [2017] 1 S.C.R.

A he was shot dead and the ephemeral threat became a reality.
7. Thereafter, during the course of investigation, two accused
persons, namely, Mohammed Kaif and Mohammad Javed were declared
as proclaimed offenders. On I 0.9.2016, Shahabuddin was released on
bail and the aforesaid proclaimed offenders were seen in his company
B but o.,athy reigned and the fear ruled so that no police official. dared to
arrest them. On 14.9.2016petitioner saw the pictures of the proclaimed
offenders Mohammed Kaif and Mohammad Javed with Shri Tej Pratap
Yadav, Health Minister of Bihar on all media channels.
8. Feeling insecured, terrorized and helpless as regards her safety
c and security and of her two minor children, the petitioner has moved this
Court. As set forth, the death of the husband, makes her apprehensive
that Shahabuddin may eliminate herentire family. Her petrification has
been agonizingly articulated in the petition and by the learned counsel,
sometimes with vehemence and on occasions with desperation.

D · 9. At this junctl!re, we may advert to the facts in Writ Petition
(Crl.) No. 14 7 of 2016. It.is averred that respondent No. 3 is a dreaded
criminal-cum-politician who has already been declared history'sheeter
Type A (who Is beyond reform) and till date he has been booked in 75
cases· out of which in 10 cas~s he ha_s been convicted, and facing life
imprisonment in two cases and I 0 years rigorous imprisonment in one
E and 45 cases are pending for trial. He has been acquitted in twenty
cases. The first criminal case against responde1H No. 3 was initiated in
1986. The criminal activities continued in some form or other and on
3 .5.1996 he along with his associates fired upon the then Superintendent
of Police, Shri S.K. Singhal, JPS with sophisticated arms for which they
F were sentenced to undergo imprisonment for I 0 years. Thereafter, his
name figured in the murder of former JNU President, Mr.
· Chandrashekhar, who was shot dead in Si wan on 31.3.1997. It is alleged
that he aiid his private army fired upon the raiding p~rty on 16.3.2002
W!1en his house was_ raided and in that incident, the vehi~les of Deputy
hispector General of Police·, Saran range, District Magistrate, Siwan
"G. and Superintendent of Police, Siwan were burnt. From his house, huge
quantities of amm\miti0>1 were recovered and FIR no. 32 of2001 was
registered. Jn another raid conducted in 2005, large number of arms
· and ammunition were r_ecovered from the house ofthethird respondent
and FIR Nos, 41to44 of2005 were registered. In November, 2005 he
H was arrested by the joint team of Bihar and Delhi police in connection
ASHA RANJAN v. STATE OF BlHAR & ORS. 959
[DIPAK MISRA, J.]

with various cases. It is put forth that he ran a parallel administration in A
Siwan from 1990 till 2005 and in March, 2007 he was sentenced to two
years imprisonment for assault on CPI-ML offices in Siwan on 19th
September, 1998. Further he was sentenced to life imprisonment on
os:o5.2007 under Section 364/34 lPC for abduction with an intention to
commit murder of CPI (ML) worker in February, 1999, whose dead
B
body was never traced.
10. lt is set forth that in August 2004, three sons of the petiti.oner
were picked up by the henchmen of respondent No. 3 and taken to his
native village Pratappur where two of his sons, namely, Girish and Satish
were drenched in acid and his third son, who witnessed the murder
managed to escape and a criminal case was registered against him under
c
Sections 341, 323, 380, 364, 435/34 !PC for abduction, etc. of the
petitioner's two sons in which charges were framed on 04.06.2010 against
respondent No. 3 and others. The prosecution moved an application for
addition of charges under Sections 302 and 201 read with Section 120B
!PC, which prayer was initially rejected on the ground of delay but after D
the direction of the High Court of Patna, the charges under the aforesaid
Sections were added vide order dated 18.04.2014. During the litigation,
the petitioner's third son, Rajeev Roshan, a material eye witness in the
said case was murdered and an FIR No. 220/14 was lodged against
respondent No. 3, his son Osama and other unknown persons. Thus,
the three sons of the petitioner were murdered. E

11. On 18.05.2016, a raid was conducted by the district
administration at Siwanjail and District Magistrate, Si wan in his report
stated about the conduct of respondent No. 3 inside the jail and the
facilities he was enjoying in jail in violation of the jail rules/manual and
recommended his transfer from·Siwan to Bhagalpur jail whereafter h~ F
was transferred to Bhagalpur jail for six months:
12. As the narration would further unfurl, in the said case, the._.
High Court 'granted bail to'tl1erespondent No. 3 on 02.03..2016 in FIR
. No. 131/04 and further granted bail in the murder's caseofthird son.of
petitioner on 07.09.2016.in the FIR No. 220/14. The petitioner as well as. G
the State of Bihar challenged the orders granting bail. The bail orders
have oeen set aside by this Court in Clumdrakeshwar Prasad v. State
ofBilwr and Anr. 1• While setting aside the order granting hitn bail, this
Court has held:c -
' (2016) 9 sec 443 H
960 SUPREME COURT REPORTS (2017] 1 S.C.R.

A "12. In the instant case, having regard to the recorded allegations
against the respondent-accused and the overall factual sc.enario,
we are of the view, having regard in particular to the present
stage of the case in which the impugned order has been passed,
that the High Court was not justified in granting bail on the
considerations recorded. Qua the assertion that the respondent-
B
accused was in judicial custody on the date on which the incident
of murder in the earlier case had occurred, the judgment and
order of the trial court convicting him has recorded the version
of the brother of the deceased therein, that he had seen the
respondent-accused participating in the offence. We refrain from
c elaborating further on this aspect as the said judgment and order
of the trial court is presently sub judice in an appeal before the
High Court.
13. On a careful perusal of the records of the case and considering
all the aspects of the matter in question and having regard to the
D proved charges in the cases concerned, and the charges pending
adjudication against the respondent-accused and further balancing
the considerations of individual liberty and societal interest as
well as the prescriptions and the perception of law regarding
bail, it appears to us that the.High Court has erred in granting
bail to the respondent-accused without taking into consideration
E the overall facts otherwise having a bearing on the exercise of
its discretion on the issue."
On the aforementioned factual plinth, the petitioner has sought
transfer of the third respondent from the Siwanjail to a jail outside the
State of Bihar and conducting of the trials in pending cases by video
F conferencing.
13. We have heard Mr. Shanti Bhushan and Mr. Dushyant Dave,
learned senior counsel and Mr. Kislay Pandey, learned counsel for the
petitioners, Mr. P. S. Narasimha, learned Additional Solicitor General
and Mr. P.K. Dey, learned counsel appearing for CBI, Mr. Shekhar
G Naphade, learned senior counsel along with Mr. M. ShoebAlam, learned
counsel for respondent No. 3, Mr. Surendra Singh, learned senior counsel
along with Mr. Dhirendra Singh Parmar, learned counsel for respondent
No. 4 in Writ Petition (Criminal) No. 132 of2016 and Mr. Gopal Singh,
learned counsel for the State of Bihar.
H
ASHA RANJAN v. STATE OF BIHAR & ORS. 961
[DIPAK MISRA, J.]

14. As per our order dated 17.01.2017, the grievance against A
the 4th respondent in Writ Petition (Criminal) No. 132 of2016 shall be
heard and dealt with after pronouncement of this judgment and hence,
we shall n_ot delve into the contentions put forth in the said writ petition
and the stand taken in the counter affidavit in that regard for the present.
15. The seminal issue that we are required to address is whether B
this Court, in exercise of power under Article 32 and Article 142 of the
Constitution can direct transfer of an accused from one State to another
and direct conducting of pending trials by way of video conferencing.
Needless to emphasise the said advertence in law will also depend upon
the factual scenario and satisfaction of the judicial conscience of this
Court to take recourse to such a mode. The petitioners have asserted
c
with regard to the criminal activities of the third respondent, the cases in
which he has been roped in, the convictions he has faced, the sentences
imposed upon him, the snails speed at which the trials are in progress
because of the terror that reigns in Siwan, the declaration of the third
respondent as a history-sheeter Type-A (who is beyond reform), the D
non-chalant attitude unabashedly and brazenly demonstrated by him that
has unnerved and shaken the victims and the society at large, the impunity
with which the collusion with the jail administration has taken place, the
blatant intimidation of witnesses that weakens their sense of truth and
justice; and mortal terror unleashed when they come to court, the
audacious violation of the rules and regulations that are supposed to E
govern the convicts or under-trial prisoners inside the jail as if they have
been made elegantly unperceivable and the confinement inside jail remains
a word on paper, forthe third respondent, still is able to issue his command
and writs from the jail, run a parallel administration and get involved with
the crimes, at his own whim and fancy. The stand and stance put forth in F
the petitions and the arguments advanced by Mr. Shanti Bhushan and
Mr. Dushyant Dave, sometimes one may be inclined to think, are in the
realm ofrhetorics but the learned senior counsel for the petitioners and
Mr. Kislay Pandey, submitted with enor>nous agony, and filed a chart to
bolster their stand and submission. The Court had also asked Mr. P.S.
Narasimha, and Mr. P.K. Dey, learned counsel appearing for the CBI to G
submit a chart. The chart showing the cases where either the respondent
No. 3 has been convicted or acquitted or cases pending against him, has
been filed. Without commenting on the merits, we think it aptto reproduce
the Chart:-
H
962 SUPREME COURT REPORTS [2017] I S.C.R.

A "CONVICTION CASES

SI. FlR P.S. case Under Status ofTrial Status Date of Period of
No No Section conviction of Gra11 of Imprisonment
("'th appeal bail by · before grant
B sentence)/ Distiict/Hi of bail
Pending'Acqui gh Court '
ttal (in series)
1 Muffusil ps 147134113421 2Year - Bail 0 days
Case No. 448/504IPC irrprisonment 28.J0.09
.. 181/98dt & 5000/- fine byHC
c 18.09.98 Patna
2 C-2 34105 5061PC I year - Bail 3 yrs, 8
Dt. 07. 04.05 irrp1isonrnent 28.I0.09 In'.lnths, 8
andRs.1000 by Sp!. days
fine Court
3 Muffusil PS 363/3651PC 3year - Bail ODays
D case6I;<JO i1rprisonment 11.03.11
Dt. 12.04.90 . By Sp!.
Court
Si wan
4 Hussainganj • 364/34 lPC Life& - Bail 3 yrs 3 In'.ln
ps case Rs.10,000/- 21.I0.99
E No.14/99dt. byHC
07.2.99 Patna
5 I:brauli ps 3071353/34 lOyeais &Rs. Bail 2 yr5 I In'.ln
; .
CNo. 34/96 !PC 2000/- 21.10.09 21 days
dt: 04.05.96 byHC
Patna
F 6 Hussainganj 251-B) 3 Yis . Bail 2 yrs 9 roon
ps Case . N26!35 irrprisonment 20.10.09 IO days
no.44105 Dt. AnmAct & 5000/- fine by HC
24.04.05 Patna
.
11 Hussainganj 4141PC& 5 yeaIS Bail 5 yrs 8 In'.ll1 9
psCasen0. 25 (l-BY26 i1rp~sonrnent 16.07.11 days
G 42105 AnmAct
Dt:24.04.05
8 Muffusil ps 364133613021 Life Bail 6 yrs IO
Casem. 301 IPC irrprisonment 14.07:16 In'.lnths 5 days
131/04, byHC
Dt: 16.08.04. Patna
H
ASHA RANJAN v. STATE OF BIHAR & ORS. 963
[DIPAK MISRA, J.]

A
9. Hussainganj 411/414 3yrs - Bail . 3 y1~ 11
PS Case !PC irq>risonment 28.10.09 months21
no.41/05 Dt: byHC days
24.04.05 Patm
10 Pachmhi ps 392/411 This case is -do-
B
Case no. !PC morged in
102104 Dt. Hussainganj
18.10.04 ps case no.
41/05

ACQUITTED CASES
c

SI. FIR P. S. Case No ... ./dated Under Section
No. D
1 Siwan Town PS Case No. 30713231341134 !PC & 27 .
217/85 Dt. 02.09.85 Arms A~t
2 Siwan Town Case No. 77/86 394 !PC
dt: 08.04.86
3 Siwan Town PS case no. 79/86 399/402/411/412/4141216A E
Dt 10.04.86 !PC &25 A/26/35 Arms Act
4 Muffasil PS case no. 228/86 147/148/1491325/302 !PC & 27
Arms Act 3/5 Explosive Act
5 Hussainganj PS case no. 3.63/34 IPC
125/88, Dt. 12.09.88 .
. F
6 Siwan Town PS case no. 307 !PC & 27 Arms Act
183/88 Dt: 10.09.88 .
7 Siwan Town PS case no. 57/89 307/302/34 !PC & 3/4
Dt 15.03.89 Explosive Act
8 Muffusil PS case 91 /89 I 3C7134 IPC & 2 7 Arms Act
9 Mairwa (Jiradei) PS case no. I 1471148/149/307/348/302/34 G
137/89 dt: 21.11.89 IPC & 3/4 Explosive Act
10 Siwan Town PS Case no. t47/14R/149/3241307 IPC & 27
108/94 /Dt: 22.05. 94 Arms Act

H
964 SUPREME COURT REPORTS [2017] I S.C.R.

A Pachurkhi PS case no.
11 147/323/427/379 !PC
601945 Dt 13.01.94
12 Siwan Town PS case 302/307/324/ 120 (B)/ 34
no. 155/94 Dt: !PC & 27 Arms Act
08.08.94
13 Pachrukhi PS case no. 143/144/42 7/435 IPC
B 07195 Dt; 20.01.95
14 Pachrukhi PS case 302/34 !PC
08/95 Dt; 20.01.95
15 Siwan Town PS 341/342/32 313 07 /34 JPC &
caseno. 11/96 Dt: 27 Arms Act
18.01.96
c
16 Hussainganj PS case 14 7/148/14 913 24130 713 02
no. 99196 Dt. 02.05.96 JPC & 27 Arms Act
17 Andar PS case no. 14 7/148/149/324/307/302
32/96 Dt. 02.05.96 lPC & 27 Arms Act
18 Andar PS case no. 147/148/149/307 !PC
D 36196 Dt. 02 .05 .96
19 Siwan Town PS case 365/387 !PC
no. 205/90 dt:
03 .09.90
20 Muffasil PS case no. 14 7/148/324/323130 713 79/I
52/88 PC
E
PENDING CASES
S. No FIR P.S. Case Under Section
No/ Dated
I Hussainganj ; 25 (1-B) 25 Anns Act
F 43105; 24.04.05
2 Siwan Town; 420/467/468 !PC
99105; 22.04.05
3 Muffasil PS; 353/506 !PC
97/07; 02.05.07
G 4 Hussainganj PS 392/411 IPC
134/06; 13.10.05
5 Muffasil PS; 353/506 IPC
96107; 02.05.07
6 Hussainganj PS; 25 (1-B) a/26 Anns Act, 120 B
39105; 24.04.05
H
ASHA RANJAN v. STATE OF BIHAR & ORS. 965
[DIPAK MISRA, J.]

A
7 Muffasil PS; 414/353 !PC
289/10; 22.07. IO
8 Andarps ; 41/99; I 4/248/149/341/324 IPC & 27 Arms
05.07 .99 Act
9 C-2; 54105; 9/44/46/48/49/49(8)/50/51 B
25.04.05
IO Hussaingani; 25(1-b) A/25 Arms Act (1-B) (H) 25(4)
114/05; 26.08.05 26(1 )35 Arms Act
11 Siwan Town; 1471148/186/353/452/506 !PC
I 1/0 I; 18.01.01 c
12 Hussainganj PS; 3 79 !PC & 39144 Electricity Act
48105; 24.04.05
13 C-2; 27/09; 52 Prisoner Act 1984
16.03.09
14 Siwan Rai I PS; 147 /148/149/3411323/353/ 504 !PC@ D
33197; 02.09.97 27 Arms Act
15 Muffasil PS; I 89/353/506 !PC
131106; I 7 .06.06
16 Muffasil PS; 353/504/506/34 IPC
225/I I; 12.07.11 E
17 Siwan Town; 341/302/307/34 IPC
229/05;25.l0.05
18 M uffasil PS; 188 !PC & 52 Prisoner Act 1894 u/s
333/11; 05 IO. I I 420/468/471 !PC
19 Muffasil PS; I 47 /149/341/342/323/307 /33 7 !PC F
56107; 20.03 .07
20 Andar PS; I 0/98; 147/148/149/341/506 IPC & 27 Anus
29.01.98 Act
21 Town PS; 220/14; 302/34/120 B IPC & 27 Arms Act
17.06.14 G
22 C-2; 62/07; 52 Prisoner Act 1894
03.08.07
23 C-2; 67/08; 52 Prisoner Act 1894
01.09.08
H
966 SUPREME COURT REPORTS [2017] I S.C.R.

A 24 Muffasil PS; 188 !PC & 52 Prisoner Act 1894
226/13; 01.06.13
25 Muffasil PS: 341/504/353/34 IPC
182/08: 02.08.08
26 Hu ssainganj PS: 454/380 IPC
B 34101; 17.03.01
27 Siwan Town PS; 147I148/ 149/307135 313 23/33 313 79/38 Of
3 3/0 I ; I 7. 03 .0 I 447/452/427/435/l20 -b IPC & 27
Arms Act
28 M uffasil PS; 364 IPC
08/01; 13.01.01
c 29 Barhariyaps; 302/120-B, 363 I PC & 2 7 Arms Act
82/04; 08.08.04
30 Hussainganj PS 302/120-B
3I Muffasil PS; 307 IPC
150/09; 24.06.09
D 32 Siwan Town; 302/ 120 (NB)/34' IPC
20102; 05.03.02
33 Siwan Town; 147/148/149/341-/379/364 !PC
23105; I 0.02.05
34 Siwan Town; 302/34 IPC & 27 Arms Act
102/98; 13.07.98
E 35 M uffasil PS; 307/149 IPC & @7 Anus Act
32/01; 15.03.01
36 Siwan Town; 1471148/ 149/3 07 /323/341135 313 791504
145/98; 09.09.98 IPC & 27 Arms Act -
37 Siwan Town; 3071139 IPC & 27 Arms Act
147/98; 09.09.98
F
38 Hussasinganj PS; 25(1-B)A/26 Arms Act & 314 Explosive
31/01; 17.03.01 Act & 147 /148/149/324/307 /302/
353/332/333/335/120-B IPC
39 russainganj PS; 14711481120-B/43 51149/3 33135 31 307
2/01; 17.03.01 IPC & 27 Arms Act .

G 40 Hussainganj PS; 25(1-A·)/26/27/35 Arms Act& 315
33/01: 17.03.01 Explosive Act
41 Siwan Town; 3 83/34 IPC
·69106; 13.03 .06
42 Siwan Town; 302/307/120-B/34 !PC & 27 Arms Act
54/97; 31.03.97
H
ASHA RANJAN v. STATE OF BIHAR & ORS ... 967
[DIPAK MISRA, J.]

A
43 Mirgabj (Gopalganj) PS; 302/34 IPC & 27 Arms Act
119/91; 31.05.91
44 Jugsalai (J amsedpur) PS; 1761177 /I 79/419/420/468/201 I
182/05 120-B !PC -

45 KMP (Muzaffarpur); 1761177/I 79/419/420/468/201/ B
182/05 120-B IPC"

Be it noted, in certain cases trial has been stayed by the High
Court and in ~ertain cases bail has been granted.
16. On a perusal of the aforesaid chart, it is clear as noon day c
tha,t respondent No. 3 has been involved in numerous cases; that he has
been booked in at least 75 cases, out of which he stands convicted in I 0
cases; that he is facing life imprisonment in two, which include murder
case of the. Petitioner's two sons, and 10 years rigorous imprisonment in
one; that out of 45 pending cases, at least 21 are those where maximum
sentence is 7 years and more, induding 9 for murder and 4 for attempt D
to murder; that apart from the murder of the Petitioner's two sons, there
are at least 15 out of total 45 pending cases which have been registered
against him while he was in jail and out of these 15 pending cases, one is
for the murder of the Petitioner's third son and two are for attempt to
murder. He has been declared ahistory-sheeterType 'A' (who is beyond E
reform) ..-
17. Referring _to the chart, it is urged with vehemence by Mr.
Bhushan that the third respondent is a criminal of such nature who is
beyond reform and his influence is writ large in the State ofBihar. It is
contended by him that the said respondent has been a Member of
F
Legislative Assembly for two times and Member of Parliament from
Siwan on four occasions. In such a situation, contend Mr. Bhushan and
Mr. Dave, it is absolutely difficult, nay, impossible to get justice because
utmost fear prevails and nerve-wrecking terror reigns supreme in the
locality. In such an atmosphere, justice will be the fir.St casualty and,
therefore; this Court, as the protector of the constitutional rights, should G
direct transfer of the ti)ird respondent to ajail outside Bihar wherever
trial by video conferencing would be possible. Mr. Bhushan, in the course
of his arguments, has commended us to certain authorities, which we
shall referJo at the relevant stage. Mr. Gopal Singh, learned counsel for
the State of Bihar submitted that the State of Bihar is wedded to rule of
H
968 SUPREME COURT REPORTS [20 I 7] 1 S.C.R.

A law and will religiously endeavour to carry out the directions of this
Court that the Court may ultimately direct, regard being had to the concept
of fair trial.
18. Mr. Naphade, learned senior counsel appearing for the third
respondent, would contend that for the purpose of transferring an accused
B frol!l th~ State ofBihar to a prison outside the State there must exist a
law on the statute bo9k which permits such transfer. In the absence of
any law, it is not pe.rrnissible in law to issue any direction for such transfer.
According to Mr. Naphade, by transfer to a prison outs.ide the State, the
rights of an under-trial prisoner under Articles 14 and 21 are violated
and when the third respondent is facing trial in 45 cases, his transfer
c should not be so directed. Learned senior counsel would urge that if an
action of a State is prejudicial to the right of an individual, it has to be
. backed by an authority of law and in the absence of the same, such an
action is inconceivable. It is further propounded by Mr. Naphade that an
order of transfer cannot be passed in exercise of power under Article
D 141.ofthe Constitution, as it will be inconsistent with the substantive
provisions of the relevant statutory law. It is canvassed by Mr. Naphade
that powers exercisable under Article 142 is to do complete j_ustice, but
it cannot assume. a legislative charaeter, for legislatiO'n is absolutely
different thari adjudication. It is his further submissi-0n thatArtic)e 142
dqes not empower thi's Court to enact law and transferr_ing the third
E respondent from Bihar to any other prison outside the State would amount
to the Court enacting the law. and then exercising the judicial power to
enforce the law. ·
- 19. Learned senior counsel would put forth that transferring the
third respondent from his home State to another State would affect his
F right under Article 21 of the Constitution and s\lch an order is only possible ·
in accordance with the procedure established by law and in the absence
of any law, the submission advanced on behalf of the petitioners is
absolutely untenable. Criticising the rhetorical arguments assiduously
structured by the learned senior counsel forthe petitioners, it is astutely
G expounded by Mr. Naphade thatthe argument is fundamentally founded
on equity which is given the colour ofjustice and fairness in trial, nullifying ·
.the fundamental principle that equity has to yield to the statutory
provisions. Further, the third respondent, as an accused, has a right to
be tried fairly under Article 21 and his right eannotbe scuttled or corroded
at ·the instance of the petitioners. Learned senior counsel would urge
H ~.
ASHA RANJAN v. STATE OF. BIHAR & ORS. 969
[DIPAK MISRA, J.]

·1~at in a case of the present nature, the question of balancing of rights A
does not arise, for the principle of balancing ofrights applies where two
fundamental rights compete but here it is the right of the third respondent
which has to be protected under Article 21 which has been given the
highly cherished value by this Court, and the Court is the sole protector
of the said right.
B
20. First, we shall have a survey of the statutory law in the field.
The Prisoners Act, 1900 was brought into existence to consolidate the
law relating to prisoners confined by the order of a court. As Section 29 ·
ofthe Prisoners Act, 1900 covered a different field, the Parliament thought
it appropriate to bring in the Transfer of Prisoners Act, 1950 (for short,
"the 1950 Act"). It is necessary to state what compelled the Parliament c
to bring the said legislation. The Statement ofObjects and Reasons of
the 1950 Act states as follows:-
. "Section 29 of the Prisoners Act, 1900, inter alia, provided for
the inter-State transfer ofprisoners between the States in Parts
A,.C and D of the First Schedule to. the Constitutfon. There D
was no provision, ho.wever, either in the Prisoners Act, 1900 or
.any other law for the transfer of prisoners in those ·States.to
prisons in Part B States and vice versa. Cases may arise wnere
the removal for the Jransfer of prisoners from Parts A, tand D.
States to Part B States- and vice versa may be considered E
administratively desirable or ~ecessary"
21. Section 3 of the 1950 Act reads as follgws:-
"3. Removal of prisoners from one State to another:- ( 1) Where
any person is confined in a prison in a State.-
~·
F
(a) under sentence of death, or
(b) under or in lieu of a sentence of imprisonment or transportation
or
( c) in default of payment of a fine, or
(d) in default of giving security for keeping the peace or for G
maintaining good behaviour;
the Government of that State may, with the consent of the
Government of any other State, by order, provide for the removal
of the prisoner from that prison to any prison in the other State.
H
970 SUPRbME COURT REPORTS (2017] I S.C.R.

A (2) The officer in charge of the prison to.which any person is
removed under sub-section( 1) shall receive and detain him, so
fad1s may be, according to the exigency of any writ, warrant or
order of the court by which such person has been committed, or
until s11Ch person is discharged or removed in due course oflaw."
B L2. We are required to examine, when the said provision permits
transfer outside the State only in certain circumstances and the case of
respondent No. 3 does not come within any of the circumstances, could
the accused respondent be transferred ftom the prison in Bihar to any
other prison situate in another State. It is also necessary to be addressed,
whether the transfer would vitiate the basic tenet of Article 21 of the
c Constitution and should such a nght be allowed to founder. In this regard,
we have been commended to Sunil Batra (II) v. Del/ii Administration'
and State of Maharash!f'-'J & ors v. Saeed Sohail Sheikh and Ors.'.
23. In Sunil Batra (II) (supra), a writ petition was registered on
receipt of a letter from the prisoner complaining of a brutal assault by
D Head Warder on another prisoner. The letter was metamorphosed into
a proceeding under Article-32 of the Constitution. The Court referred to ·
the decision in Sun ii Batra v. Delhi Admiaistration & 'o;s,' to opine
that the said decision imparts to the habeas corpus writ a versatile
vitality and operational utility that makes a healing presence of the law
to live up to its reputation as bastion of liberty even within the secrecy of
E the hidden cell. The Court discussing about the perspective in the context
of the prisoners right and the to1ture, reproduced a passage from Sir
Winston Churchill that was referred to in Sun ii Batra (supra). The said
passage reads thus:- ·
"The mood and temper of the public in regard to the treatment
F of crime and c·riminals is one of the most unfailing tests of the
civilization of any country. A calm dispassionate recognition of
the rights of the accused, and even of the convicted criminal,
against the State - a constant heart-searching by all charged
with the duty·of punishment - a desire and eagerness te·
G · rehabilitate in the world of industry those who have paid their
due in the hard coinage of punishment: tireless efforts towards
the discovery of curative and regenerative processes: unfailing
faith that there is a treasure, if you can only find it, in the heart of
' ( 1980) J sec 488
'(2012) 13 sec 192 -
H • (1978) +sec 494
ASHA RANJAN v. STATE OF BIHAR & ORS. 971
[DIPAK MISRA, J.)

every man. These are the symbols, which, in the treatmenf of , A
crime and criminal, mark and measure the stored-up strength of
a nation, and are sign and proof of the living virtue in it."
We may immediately say, we share the same thought without
any reservation.
24. The Court observed that it was the import of the Preamble B
and Article 21 of the Constitution that the protection ·of the prisoner
would come within the rights that is needed protection under Article 32.
The three-Judge Bench referred to the facts and thereafter adverting to
the rights of the prisoners opined thus:-
"40. Prisoners are peculiarly and doubly handicapped. For one c
thing, most prisoners belong to the weaker segment, in poverty,
_literacy, social station and the like. Secondly, the prison house is
a walled-off world.which is incommunicado for the human world,
with the result that the bonded inmates are invisible, their voices
inaudible, their injustices unheeded. So it is imperative, as implicit i)
in Article 21, that life or liberty, shall not be kept in suspended
animation or congealed into animal existence without the
freshening flow of fair procedure. The meaning of 'life' given
by Field, J., approved in Kharak Singh' and Maneka Gandhi'
bears excerption:
E
"Something more than mere animal existence. The inhibition
against its deprivation extends to all those limbs and faculties
by which life is enjoyed. The provision equally prohibits the
· mutilation of the body by the amputation of an arrn or leg, or
the putting .out of an eye, or the destruction of any other
organ of the body through which the soul communicates with ·F
the outer world."
Therefore, inside prisons are persons and their persimhood, if
crippled by law-keepers turning law-breakers, shall be forbidden
by the writ of this Court from such wrongdoing. Fair pl'.:)cedure, ..
in dealing with prisoners, therefore, calls for another dimension G
of access to law-provision; within easy reach, of the law which
. limits liberty to persons who are preven(~.d from moving out of
prison gates."
'KharakSingh v. State ofU.P.A.IR 1963 SC 1295
·· {1978J 1 sec 248 H
972 SUPREME COURT REPORTS (2017] 1 S.C.R.

A 25. The learned Judge_s affinneq the position, as had b~en held
by Chandrachud, J., (as His liordship then was) in/). Bl1uvan Mollan
Patnaik & Ors v. State of A.P. & Ors':-
"Convicts are not, by mere reason of the conviction, denuded of
all the fundamental rights which they otherwise possess. A
B compulsion under the authority oflaw, following upon a conviction,
to live in a prison-house entails by its own force the deprivation
of fundamental freedoms like the right to move freel:t, throughout
the territory of India or the right to 'practise' a profession. A
man of profession would thus stand stripped ofliis right to hold
consultations while serving out his sentence. But the Constitution
c guarantees other freedoms like the right to acquire, hold and
' dispose of property for the exercise of which incarceration can
be no impediment. Likewise, even a convict is entitled to the
precious right guaranteed by Article 21 of the Constitution that
,, ··he shall not be deprived of his life or personal liberty except
D according to procedure estab1ished by law." ~.

26. Eventually, they laid down:-
"48. Inflictions may take many protean fonns, apart from physical ·
assaults. Pushing the prisoner into a solitary cell, denial of a
necessary amenity, and, more dreadful sometim_es,,.tra_nsfer to a
E distant prison where visits or society of friends or relations may
be snapped, allotment of degrading labour, assigning him to a··
desperate or tough gang and the like, may be punitive in effect.
Every such affliction or abridgmen\ is an infraction ofliberty or
life in its wider sense and cannot be sustained unless Article 21
F is satisfied. There must be a corrective legal procedure, fair and
reasonable and effective. Such infraction will be arbitrary, under
Article 14 if it is dependent on unguided discretion, unreasonable,
under Article 19 if it is irremediable and unappealable, and unfair,
under Article 21 if it vi.olates natural justice. The string of
guidelines in Batra I setout in the first judgment, which we adopt,
G provides for a hearing at some stages, a review by a superior,
and early judicial consideration so that the proceedings may not
hop from Caesar to Caesar. We. direct strict compliance with
those nonns and institutional provisio11s forthat purpose."

'(1975)3 SCC}85
H
ASHA RANJAN v. STATE OF BIHAR & ORS. 973
[DIPAK MISRA, J.]

27. Considerable emphasis was laid on the aspect that transfer A
to a distant prison where visits or society of friends or relations is snapped,
is an affliction or abridgment and the sanie is an infraction ofliberty or
life in its wider -sense and cannot be sustained unless Article 21 is
satisfied. This would be a relevant aspect as held in Saeed Soflail Sheik
(supra). fo the said case, the Court referred to Section _29 of the
B
Prisoners Act, 1900. Interpreting the said provision the Court held:-
"20. Reliance upon sub-section (2) of Section 29, in support of
the contention that the transfer of an undertriar is permissible, is
also ofno assistance to the appellants in our opinion. Sub-section
(2) no doubt empowers the Inspector General of Prisons to direct
a transfer but what is important is that any such transfer is of a c
prisoner who is confined in circumstances mentioned in sub-
section (1) of Section 29. That is evident from the use of words
"any prisoner confined as aforesaid in a prison". The expression
leaves no manner of doubt that a transfer under sub-section (2)
is also permissible only ifit relates to prisoners who were confined D
in circumstances indicated in sub-section ( 1) of Section 29. The
respondents in the present case were undertrials who could not
have been transferred in terms of the orders of the Inspector
General of Prisons under Section 29 extracted above."
28. Thereafter, the Court referred to Section 26 of the Prisons E
Act, 1894 and Sections 167 and 309 of the CrPC and adverted to the
. natur.ll of power exercisable by the Court while permitting or refusing
the transfer. In that context it ruled:-
"25 ....... We have, however, no hesitation in holding that the
power exercisable by the court while permitting or refusing F
transfer is "judicial" and not "ministerial" as contended by Mr
Naphade. Exercise of ministerial power is out of place in situations
where quality of life or the liberty of a citizen is affected, no
m11tter he/she is under a sentence of imprisonment or is facing a
criminal charge in an ongoing trial. That transfer of an undertrial
to a distant prison may adversely affect his right to defend himself G
but also isolate him from the society of his friends and relations
is settled by the decision of this Court in Sunil Batra (2) v.
Delhi Admn."

H
974 SUPREME COURT REPORTS [2017] I S.C.R.

A 29. In the ultimate analysis, the Court arrived at the conclusion
that any order that the Court may make on a request for transfer of a
prisoner is bound to affect him prejudicially, and, therefore, it is obligatory
for the court to apply its mind fairly and objectively to the circumstances
in which the transfer is being prayed for and take a considered view
having regard to the objections which the prisoner may have to offer.
B
There is in that process of determination and decision-making an implicit
duty to act fairly, objectively or in other words, to act judicially.
30. The aforesaid two pronouncements have been pressed into
service to buttress the stand that transfer of prisoner to a distant place
violates inherent.constituent of Article 21 of the Constitution. It is also
c proponed that if the transfer is directed, it would affect the edifice of
"fair trial" to which an accused is entitled to within the ambit and sweep
of the said Article. The aforesaid.two limbs of submission founded on
the basic principle ofrightto life require to be appositely understood and
appreciated. The first plank of submission in this regard that has been
D structured with phenomenal perceptiveness is that an order transferring
a prisoner, a convict or under trial to a distanc~ prison is absolutely
unacceptable and, if such an order is passed, it would clearly violate the
fundamental right of the accused which has been conferred on him under
Article 21 in its expanded horizon. In Sunil Batra (II) (supra), we find
that the transfer from one prison to another was not the real controversy.
E
The controversy pertained to a different factual score. The observations
made in para 49 of the said judgment really pertain to protection of
prisoners in the jail. By taking recourse to the epistolary method of
entertaining a petition under Article 32 of the Constitution, the Court
expressed its concern about the ill treatment and torture to prisoners. in
F . the jail and reflected on prison reforms. It is worthy to note that ~hat the
Court has really stated that transfer in certain cases may be punitivein
effect and such actions may tantamount to affliction on l_iberty or life in
the wider sense. Simultaneously, the Court has ruled that such affliction
or abridgement cannot be sustained unless Article 21 is satisfied and
there has to be a correct legal procedure, and the procedure to be adopted
G has to be fair and reasonable;-and the discretion should not be exercised
in an unguided or unreasonable manner. Thus, the decision itself does
not lay down the principle in absolute terms. Similarly, the authority in
Saeed Sohail Sheik (supra) was dealing with transfer of a prisoner
and focused on the natllre of power exercised by the Court. Reference
H
ASHA RANJAN v. STATE OF BIHAR & ORS. 975
[DIPAK MISRA, J.j

to Sunil Batra (II) (supra) was made to bolster that an order of transfer A
from one prison to anotl 1ef is not a ministerial act. Thus, the said authority
is not a precedent for th1: proposition that an accused cannot be transferred
to a prison at a distant place, when justice, fair and free trial so requires.
31. This aspect of ~rticle 21, it is imperative, has to be tested on
the bedrock of fair trial. The question that is required to be posed is if B
the accused is transferred to another jail_ in another State, would the
same become an apology for trial or promote and safeguard free and
fair trial. The argument that all relevant witnesses are in Siwan and the
witnesses the defence intends to cite are in S iwan and in such a situation
the trial after shifting cannot be characterized as fair trial refers to only
one aspect. The concept of fair trial recognized under the Code of Criminal c
Procedure is conferred- an elevated status under the Constitution, is a
much broader and wider concept. If the transfer will create a dent in
the said concept, there, is no justification to accept such a prayer at the
behest of the petitioners. In:oppugnation, the conception of fair trial in
criminal jurisprudenc~ is not oi1e way traffic, but includes the accused D
and the vktim and it is. the duty of the court to weigh the balance. When
there is threat to life, liberty and fear pervades, it sends shivers in the
spine and corrodes the basic marrows of holding of the trial at Siwan.
This is quite farther from the idea of fair trial. The grievance of the
victims, who have enormously and apparently suffe~ed deserves to be
dealt with as perthe law of the land and should not reryrnin a mirage and E
· a distant dream. As we find, both sides have propounded the propositions
in extreme terms. And we have a duty to balance. ·
32. To appreciate the contention on this score, we may, at present,
refer to certain authorities that have dealt with fair trial in the constitutional
and statutory backdrop. F
. 33. In J. Jayahilitlwa & Ors v. State of Karnataka & Ors.•,
the Court held that fair trial is the main object of criminal procedure and
such fairness should not be hampered or threatened in any manner. Fair .
trial must be accorded to every accu~ed in the spirit of the right to life
and personal liberty and the acc;,scd must get a free and fair, just and
G
reasonable trial on the 'charge ;mput0J in a criminal case. It has been
further observed that any breach or violation of public rights and duties
adversely affects the community as~ whole and it becomes harmful to
the society in general and, therefore, in all circumstances, the courts

'(2014)itscc 401 H
976 SUPREME COURT REPORTS r20 I 7J 1 s.e:R.

A have a duty to maintain public confidence in the administration ofjustice
and such duty is.to vindicate and uphold the "majesty of the law" and the
courts cannot turn a blind ·eye to vexatious or oppressive conduct that
occurs in relation to criminal proceedings. The Court further laid down
that denial of a fair trial is as much injustice to the accused as is to the
victim and the society. It necessarily requires a trial before an impartial
-B
Judge, a fair prosecutor and an atmosphere of judicial calm. Since the
object of the trial is to mete out justice and to convict the guilty and
protect the innocent, the trial should be a search for the truth and not
about over techni_calities and must be conducted under such rules as will
protect the innocent and punish the guilty. Justice should not only be
c done but should be seen to have been done. Therefore, free and fair trial
is a sine qua non of A11icle 21 of the· Constitution. Right to get a fair
trial is not only a basic fundamental right, but a human right also.
Therefore, any hindrance in a fair trial could _be violative of Article I 4 of
the Constitution. Elevating the right of fair trial, the Court observed:.-
D "Article I 2 of the Universal Declaration ofHuman Rights provides
for the right to a fair trial wnat is enshrined in Article 21 of our
Constitution. Therefore, fair trial is the heart of criminal
jurisprudence and, in a way, an important facet ofa democratic
polity and is governed by the rule of law. Denial of fair trial is
crucifixion of human rights. [Vide Triveniben v. State of
E Gujarat', Abdul Rehman Antulay v. R.s: Nayak 10, Raj Deo
Sharma (2) v. State ofBihar11 , Dwarka Prasad Agarwal v. B.D.
AgarwaF', K.Anbazhagan v. Supt. of Police 13 , Zahira Habibullah
Sheikh (5) v. State ofGujarat 14, Noor Aga v. State of Punjab 1",
Amarinder Singh v. Parkash Singh Badal1', Mohd. Hussain v.
F State ((Jovt. ofNCT orDelhi)1', Sudevanand v. State1', Rattiram
v. State of M.P. 19 and Natasha Singh v. CBI".]"
9
(1989) I SCC578
" <1992) 1 sec 22s
'' (1999) 7 sec 604
"(2003) 6 sec 230
G "(2004) 3 sec 767
"(2006) 3 sec 374
"(2008) 16 sec 4 t 7
" (2009) 6 sec 260
11
(2012) 2 sec 584
" (2012) 3 sec 387
"(2012) 4 sec 516
H '" (2013) s sec 741
,, __,
ASHA RANJAN v. STATE OF BIHAR & ORS. 977
[DIPAK MISRA, J.]

34. In this regard, we may sit in the time machine and refer to a A
three-Judge Bench judgment in Maneka Sanjay Gandhi & another v.
Rani Jetflmalani11 , wherein it has been observed that assuranc·e of a
fair trial is the first imperative of the dispensation of justice and the
central criterion for the court to consider when a motion for transfer is
made is not the hypersensitivity or relative convenience of a party or
B
easy availability oflegal services or like mini-grievances. Something more
substantial, more compelling, more imperilling, from the point of view of
public justice and its attendant environment is necessitous, if the court is
to exercise its power of transfer. This is the cardinal principle although
the circumstances may be myriad and vary from case to case. The
Court observed that acc4sed cannot dictate where the case against him c
should be tried and, in a case, it the duty of__the Court to weigh the
circumstances.
35. In Rattiram (supra), speaking on fair trial, the Court opined
that:-
"J9 .... Fundameri~ally, a fair and impartial trial has a sacrosanct D
purpose. It has a demonstrable object that the accused should
not be prejudiced. Afair trial is required to be conducted in such
a manner which would totally ostracise injustice, prejudice,
dishonesty and favouritism."
In the said case, it has further been held that:- E
"60. While delineating on the facefs of sp~edy trial, it cannot be
regarded as an exclusive right of the accused. The. right of a
victim .has been given recognition in.Mangal Singh v. Kishan
Singh 11 wherein it has been observed thus:
F
'14 . ... Any inordinate delay in conclusion of a criminal
trial undoubtedly has a highly deleterious effect on the society
generally, and particularly on the .two sides of the case. But
it will be a grave mistak~ to assume that delay in trial does
·not cause acute suffering and anguish to the victim of the
offence. In many cases the victim may suffer even more G
than the accused. There is, therefore, no reason to give all
the be'lefits on account of the delay in trial to the accused
and to completely deny all justice to the victim of the offence.'
"(1979) 4 sec 167
22
(2009) 11 sec 303 H
978 SUPREME COURT REPORTS (2017] I S.C.R.

A 61. It is worth noting thatthe Constitution Bench in Iqbal Singh
Marwah v. Meenakshi Marwah 13 though in a different context,
had also observed that delay in the prosecution of a guilty person
comes to his advantage as witnesses become reluctant to give
evidence and the evidence gets lost.
B x x x x

64. Be it noted, one cannot afford to treat the victim as an alien
or a total stranger to the criminal trial. The criminal jurisprudence,
with the passage of time, has laid emphasis on victimology which
fundamentally is a perception of a trial from the viewpoint of the
c criminal as well as the victim. Both are viewed in the social
context. The view of the victim is given due regard and respect
in certain countries. In respect of certain offences in our existing
criminal jurisprudence, the testimony of the victim is given
paramount importance. Sometimes it is perceived that it is the
duty of the cou·rt to see that the victim's right is protected. A
D direction for retrial is to put the clock back and it would be a
travesty of justice to so· direct if the trial really has not been
unfair and there has been no miscarriage of justice or failure of
justice." '
36. Be it noted, the Court in the said case had noted that there
E has to be a fair trial and no miscarriage of justice and under no
circumstances, prejudice should be caused to the accused but, a pregnant
one, every procedural lapse or every interdict that has been acceded to
and not objected at the appropriate stage would not get the trial dented
or make it unfair. Treating it to be unfair would amount to an undesirable
F state of pink of perfection in procedure. An absolute apple"')Jie order in
carrying out the adjective law, would only be sound and fury signifying
nothing." ·
3 7. In Manu Sltarma v, Stale (NCT of Del/ti)", the Court,
emphasizing on the concept of fair trial, observed thus:-
G "197. ln the Indian criminal jurisprudence, the accused is placed
in a somewhat advantageous position than under different
jurisprudence of some of the countries in the world. The criminal
justice administration system in India places human rights and

"(2005) 4 sec 370
H "(2QI0)6SCC I
ASHA RANJAN v. STATE OF BIHAR & ORS. 979
[DIPAK MISRA, J.]

dignity for human life at a much higher' pedestal. In our A
jurisprudence an accused is presumed to be innocent till proved
guilty, the alleged accused is entitled to fairness and ttue
investigation and fair trial and the prosecution is expected to
play balanced role in the trial of a crime. The investigation should
be judicious, fair, transparent and expeditious to ensure
B
compliance with the basic rule oflaw. These are the fundamental
canons of our criminal jurisprudence and they are quite in
conformity with the constitutional mandate contained in Articles
20 and 21 of the Constitution oflndia."
38. A three-Judge Bench in Mohd. Hussain@ Juljikar Ali v.
Tlte State (Govt. of NCT) Del/1i1-' approvingly reproduced para 33 of c
the eitrlier judgment in Zaltira Habibulla H. Sheik/1 v. State of Gujarat''
(known as "Best Bakery" case) which is to the following effect:-
"33. The principle of fair trial now informs and energises many
areas of the law. It is reflected in numerous rules and practices.
It is a constant, ongoing development process continually adapted D
to new and changing circumstances, and exigencies of the
situation - peculiar at times and related to the nature of crime,
persons involved - directly or operating behind, social impact
and societal ne.eds and even so many powerful balancing factors
which may come in the way of administration of criminal justice E
syste1n.''
39. In Zaltira Habibulla H. Slteiklt (supra), it has been held:-
"38. A criminal trial is a judicial examination of the issues in the
case and its purpose is to arrive at a judgment on an issue as to
a fact or relevant facts which may lead to the discovery of the F
fact issue and obtain proof of.such facts at which the prosecution
and the accused have arrived by their pleadings; the controlling
question being the guilt or innocence of the accused. Since the
object is to mete out justice and to convictthe guilty and protect
the innocent, die trial should be a search for the truth and not
G
about over technicalities, and must be conducted under such rules
as will protect the innocent, and punish the guilty. The proof of
charge which has to be beyond reasonable doubt must depend

"<2012) 9 sec 408
"'(2004) 4 sec 1s8 H
980 SUPREME COURT.REPORTS [2017] 1 S.C.R.

A upon judicial evaluation of the totality of the evidence, oral and
circumstantial, and not by an isolated scrutiny.
39. Failure to accord fair hearing either to the accused or the
pi;osecution violate> even minimum standards of due process of
law. It is inherent in the concept of due process of law, that
B condemnation should be rendered only after the trial in which
the hearing is a real one, notsham or a mere farce and pretence. ·
Since the fair hearing requires an opportunity to preserve the
process, it may be vitiated and violated by an overhasty, stage-
managed, tailored and partisan trial.
40. ]he fair trial for a criminal offence consists not only in
c technical observance of the frame and forms oflaw, but also in
recognition and just application of its principles in substance, to· .
find out the truth and prevent miscarriage of justice."
40. In Mohd. Hussain@; Juljikar Ali (supra) the three-Judge
Bench has drawn a distinction between the speedy trial and fair trial by
D opining that there is, however, qualitative difference between the right to
speedy trial and the acc4sed's right of fair trial. Unlike the accused's
right of fair trial, deprivation of the right to speedy trial does not per se
prejudice the accused in defending himself. The right to.speedy trial is in
ifs very nature relative. It depends upon diverse circumstances. Each
E case of delay in conclusion of a criminal trial has to be seen in the facts
and circumstances of such case. Mere lapse of several years since the
commencement ofprosecution by itself may not justify the discontinuance
of prosecution or dismissal of indictment. The factors concerning the .
accused's right to speedy trial have to be weighed vis-a-vis the impact
ofthe crime on society and the confidence of the people in judicial system.
F Speedy trial secures rights to an accused but it does not preclude the
rights of public justice. The nature and gravity of crime, persons involved,
social impact and societal needs must be weighed along with the right of
the 11ccused to speedy trial ailcl if the balance tilts in favour of the former
the long delay in conclusion of criminal trial should not operate against
G the continuation of prosecution and if the right of the accused in the
facts and circumstances ofthe case and exigencies of situation tilts the
balance in'his favour, the prosecution may be brought to an end.
41. We have referred to the said authority as the three-Jud~e
Bench has categorically stated that interests of the society at large cannot
be disregarded or totally ostracized while applying the test of fair trial.
H
· ASHA RANJAN v. STATE OF BIHAR & ORS. 981
[DIPAK MISRA, J.]

42. In B<1blu Kum<1r <1nd Ors. v. St<1le of Bilwr <1nd Anr." the A
Court observed that it is the duty of the court to see that neither the
prosecution nor the accused play truancy with the criminal trial or corrode
· the sanctity of the proceeding. They cannot expropriate- or hijack the
a
community interest by conducting themselves in such manner as a .
consequence of which the trial becomes a mock trial. The Court further
B
. ruled that a criminal trial is a serious concern of society and every member
of the c_ollective has an inherent interest in such a trial and, therefore,
the court is duty-bound to see that neither the prosecution nor the defence
takes unnecessary adjournments and take the trial under their control.
The said observations were made keeping in view the concept of fair
trial, the obligation of the prosecution, the interest of the community and· c
the duty of the court.
- 43. Recently,.in St<1le of H<1ry<1n<1 v. R<1m Melwr <1nd Ors.",
after analyzing the earlier judgments, the Court ruled that the concept of
the fair trial is neither in the realm of abstraction or a vague idea. lt is
a concrete phenomenon; it is not rigid and there cannot be any straitjacket D
formula for applying the same. The Court observed that it cannot be
attributed or clothed with any kind of rigidity or flexibility in its application.
It.is because fair trial in its ambit requires fairness to the accused, the
victim and the collective at large. Th.e Court ruled that neither the accused
nor the prosecution nor the· victim which is a part of the society can
cJaim absolute predominance over the other, for once absolute .E
predominance is recognised, it will have the.effect potentiality to bring in
an anarchical disorder in the conducting of trial defying established legal·
_ norm. The Court opined.that whole thing would be dependent on the
· fact situation; established norms and recognised principles and eventual
appreciation of the factual scenario in entirety. There may be cases F
which may command compartmentalisation but it cannot be stated to be
an inflexible rule. Each and every irregularity cannot be imported to the
arena offaiF-trial. There may be situations where injustice to the victim
may play a pivotal role. The 9entripodal purpose is to see that injustice is
avoided when the trial is conducted. Simultaneously the concept of fair
trial cannot b.e allowed to such an extent so that the systemic order of G
conducting a trial ·in accordance with CrPC or otlier enactments get
~mortgaged to the whims and fancies of the defence or the prosecution.
The command of the Code cannot be thrown to the win"ds. In such
"(20t5) s sec 787
'"(2016) s sec 762 H
•

982 SUPREME COURT REPORTS [2017) I S.C.R.

A situation, as has been laid down in many an authority, the courts have
significantly an eminent role. A plea of fair trial cannot be acquiesced
to create an organic disorder in the system. It cannot be acceded to
manure a fe>ti le mind to usher in the nemesis of the concept of trial as
such. The Court further observed that there should not be any inference
that the fair trial should not be kept on its own pedestal as it ought to
remain but as far as its applicability is concerned, the party invoking it
has to establish with the support of establi.shed principles. The process
of the court cannot b~· abused in the name of fair trial at the drop of a
hat, as that would lead to miscarriage of justice. ·
44. On a studied analysis of the concept of fair trial as a facet of
c Article 21, it is noticeable that in its ambit and sweep it covers interest of
the accused, prosecution and the victim. The victim, may be a singular
person, who has suffered, but the injury suffered by singular is likely to
affect the community interest. Therefore, the collective under certain
circumstances and in certain cases, assume the position of the victim.
D They may not be entitled to compensation as conc.eived under section
357A of the CrPC but their anxiety and concern of the crime and desire
to prevent such occurrences and that the perpetrator, if guilty, should be
punished, is a facet of Rule of Law. And that has to be accepted and
ultimately protected.

E 45. It is settled in law that the right under Article 21 is not absolute.
It can be curtailed in accordance with law. The curtailment of the right
is permissible by following due procedure which can withstand the test
of reasonableness. Submission that if the accused is transferred from
jail in Si wan to any oiher jail outside the State of Bihar, his right to fair
trial would be smothered and there will be an inscription of an obituary
F of fair trial and refutation of the said proponement, that the accused
neither has monopoly over the process nor does he has any exclusively
absolute right, requires a balanced resolution. The opposite arguments
are both predicated on the precept of fair trial and the said scale would
decide this controversy. The interest of the victim is relevant and has to
G be taken into consideration. The contention that if the accused is not
shifted out of Siwan Jail, the pending trials would result in complete
farce, for no witness would be in a position to depose against him and
the~, in total haplessness, shall be bound to succumb to the feeling of
accentuated fear that is created by his unseen tentacles, is not an arti_fice

1-1
ASHA RANJAN v. STATE OF BIHAR & ORS. 983
[DIPAK MISRA, J.]

and cannot be ignored. In such a situation, this Court should balance the A
rights between the accused and the victims and thereafter weigh on the
scale of fair trial whether shifting is necessary or not. It would be
travesty if we ignore the assertion that if the respondent No. 3 is not
shifted from Siwan Jail and the trial is held at Si wan, justice, which is
necessitous to be done in accordance with law, will suffer an
B
unprecedented set back and the petitioners would remain in a·<:onstant
state of fear that shall melt their bones. This would imply balancing of
rights.
46. Having noted thus, as presently advised, we shall first advert
to certain authorities that pertain to balancing ofrights. In Sakal Paper
(P) Ltd. & Ors v. Union ofIndia & another'', the Court in the context c
of freedom of speech and expression, has held that freedom of speech
can be restricted only in the interests of the security of the State, friendly
relations with foreign State, public order, decency or morality or in relation
to contempt of court, defamation or incitement to an offence. It cannot,
like the freedom to carry on business, be curtailed in the interest of the D
general public. Analysing further, the Court held:-
"It follows from this that the State cannot make a law which
directly restricts one freedom even for securing the better
enjoyment of another freedom. All the greater reason, therefore
for holding that the State cannot directly restrict one freedom by E
placing an otherwise permissible restriction on another freedom."
4 7. In Subramanian Swamy v. Union oflndia 30 the Court after
referring to the said authority ruled that:-
"... the issue herein is sustenance and balancing of the separate
rights, one under Article 19( 1)(a) and the other, under Article 21. F
Hence, the concept of equipoise and counterweighing
fundamental rights of one with other person. It is not a case of
mere better enjoyment of another freedom. In Acharya
Maharajshri Narendra Prasadji Anandprasadji Maharaj v.
State of Gujarat31 , it has been observed that a particular G
fundamental right cannot exist in isolation in a watertight
compartment. One fundamental right of a person may have to
coexist in harmony with the exercise of another fundamental
" AIR l 962 SC 305
"(2016) 7 sec 221
"(1975) l sec l l H
984 SUPREME COURT REPORTS [2017) I S.C.R.

A right by others and also with reasonable and valid ex~rcise of
power by the State in the light of the directive principles in the
interests of social welfare as a whole. The Court's duty is to
strike a bal.a.nce between competing claims of different fnterests .
. In DTC v. Mazdoor Congress-'' the Cou.rt has ruled. that articles
reir·ing to fundamental rights are al I parts of an integrated scheme
B
in the CO!\Stitution and their waters must mix to constitute that
grand tlowofUnimpeded and impartial justice; social, economic
and political, and of equality ofstatus and opportunity which imply
absence of unreasonable or unfair discrimination between
individuals or groups or classes."
c 48. In this context, it is also appropriate to refer to certain other
d.ecisions where the Co~rt has dealt with the concep~ of competing rights.
We are disposed to think that dictum laid therein has to be appositely
appreciated. In Mr. .'X' v. Hospital 'Z"', the issue arose with regard
to right to privacy as implicit in the right to lifeand liberty as guaranteed
D to the citizens under Article 21 of the Constitution and the right of another
to lead a healthy life. Dealing with the said controversy, the Cour. held
as a human being, Ms 'Y' must also enjoy, as she obviously is entitled to,
all the human rights available to any other human being. This is apart
from, and in addition to, the fundamental right available to her under
Article 21, which guarantees "right to life" to every citizen of this country.
E The Court further held that where there is a clash of two fundamental
rights, namely, the appellant's right to privacy as part ofright to life and
Ms' Y's right to lead a healthy life which is her fundamental right under
Article 21, the right which would advance the public morality or public
interest, would alone be enforced through the process of court, for the
F reason that moral considerations cannot be kept at bay and the Judges
are not expected to sit as mute structures of clay in the hall known as
the cou11room, but have to be sensitive.
49. The aforesaid decision is an authority forthe proposition that
there can be a conflict between two individuals qua their right under
G Article 21 of the Constitution and in such a situation, to weigh the balance
the test that is required to be applied is the test of!arger public interest
and furtherthat would, in certain circumstances, advance public morality
of the day. To put it differently, the "greater community interest" or

"1991 Supp (I) sec 600
H " ( 1998) s sec 296
ASHA RANJAN v. STATE OF BIHAR & ORS. 985
[DIPAK MISRA, J.]

"interest of the collective or social order" would be the principle to A
recognize and accept the right of one which has to be protected.
50. In this context, reference to the pronouncement in Rev.
Stainislaus v. State of M.P. and Ors." would be instructive. In the
said case, the Constitution Bench was dealing with two sets of appeals,
one arising from Madhya Pradesh that related to Madhya Pradesh B
Dharma Swatantraya Adh iniyam, 1968 and the other pertained to Orissa
Freedom of Religion Act, 1967. The two Acts insofar as they were
concerned with prohibition of forcible conversion and punishment therefor,
were similar. The larger Bench stated the facts from Madhya Pradesh
case which eventually travelled to the High Court. The High Court
ruled that that there was no justification for the argument that Sections c
3, 4 and 5 were violative of Article 25(1) of the Constitution. The High
Court went on to hold that those Sections "establish the equality of religious
freedom for all citizens by prohibiting conversion by objectionable
activities such as conversion by force, fraud and by allurement". The
Orissa Act was declared to be ultra vires the Constitution by the High D
Court. To understand the controversy, the Court posed the following
questions:-
"(1) whether the two Acts were violative of the fundamental
right guaranteed under Article 25( 1) of the Constitution, and
(2) whether the State Legislatures were competent to enact E
them?"
51. It was contended before this Court that the right to propagate
one's religion means the right to convert a person to one's own religion
and such a right is guaranteed by Article 25(1) of the Constitution. The
larger Bench dealing with the said contention held:- F
"We have no doubt that it is in this sense that the word 'propagate'
has been used in Article 25( 1), for what the article grants is not
the right to convert another person to one's own religion, but to
transmit or spread one's religion by an exposition of its tenets. It
has to be remembered that Article 25(1) guarantees "freedom G
of conscience" to every citizen, and not merely to the followers
of one particular religion, and that, in tum postulates that there is
no fundamental right to convert another person to one's own
religion because if a person purposely undertakes the conversion
----'--
"r 1977) 1 sec 677 H
986 SUPREME COURT REPORTS [2017) I S.C.R.

A of another person to his religion, as distinguished from his effort
to transmit or spread the tenets of his religion, that would impinge
on the "freedom of conscience" guaranteed to all the citizens of
the country alike."
And again:-
B "Jt has to be appreciated that the freedom of religion enshrined
in the article is not guaranteed in respect of one religion only, but
covers all religions alike, and it can be properly enjoyed by a
person if he exercises his right in a manner commensurate with
the like freedom of persons following the other religions. What
c is freedom for one, is freedom for the other, in equal measure,
and there can therefore be no such thing as a fundamental right
to convert any person to one's own religion."
52. The aforesaid judgment clearly lays down, though in a
different context, that what is freedom for one is also the freedom for
D the other in equal measure. The perception is explicated when the Court
has said that it has to be remembered that Article 25(1) guarantees
freedom of conscience to other citizens and not merely to followers of
particular religion and there is no fundamental right to convert another
person. The right is guaranteed to all citizens. The right to propagate
or spread one's religion by an exposition of its tenets does not mean
E one's religion to convert another person as it affects the fundamental
right of the other. We have referred to this authority as it has, in a way,
dwelt upon the "intra-conflict ofa fundamental right".
53. Be it stated, circumstances may emerge that may necessitate
for balancing between intra-fundamental rights. It has been distinctly
F understood that the test that has to be applied while balancing the two
fundamental rights or inter fundamental rights, the principles applied may
be different than the principle to be applied in intra-conflict between the
same fundamental right. To elaborate, as in this case, the accused has a
fundamental rightto have a fair trial under Article 21 of the Constitution.
G
Similarly, the victims who are directly affected and also form a part of
the constituent of the collective, have a fundamental right for a fair trial.
Thus, there can be two individuals both having legitimacy to claim or
assert the right. The factum oflegitimacy is a primary consideration. It
has to be remembered that no fundamental right is absolute and it can
have limitations in certain circumstances. Thus, permissible limitations
H
ASHA RANJAN v. STATE OF BIHAR & ORS. 987
[DIPAK MISRA, J.]

are imposed by the State. The said limitations are to be within the bounds A
oflaw. However, when there is intra-conflict of the right conferred under
the same Article, like fair trial in this case, the test that is required to be
0

applied, we are disposed to think, it would be "paramount collective
interest" or "sustenance of public confidence in the justice dispensation
system". An example can be cited. A group of persons in the name of
B
"class honour'', as has been stated in Vtkas Yltdav v. State of U.P. &
Ors. 35 , cannot curtail or throttle the choice of a woman. It is because
choice of woman in choosing her partner in life is a legitimate
constitutional right. It is founded on individual choice that is recognized
in the Constitution under Article 19, and such a right is not expected to
succumb to the concept of "class honour" or "group thinking". It is c
because the sense of class honour has no legitimacy even if it is practised
by the collective under some kind of a notion. Therefore, if the collective
interest or the public interest that serves the public cause and further
has the legitimacy to claim or assert a fundamental right, then only it can
put forth that their right should be protected. There can be no denial of
D
the fact that the rights of the victims for a fair trial is an inseparable
aspect of Article 21 of the Constitution and when they assert that right
by themselves as well as the part of the collective, the conception of
public interest gets galvanised. The accentuated public interest in such
circumstances has to be given primacy, for it furthers and promotes
"Ru le of Law". It may be clarified at once that the test of primacy E
which is based on legitimacy and the public interest has to be adjudged
on the facts of each case and cannot be stated in abstract terms. It will
require studied scanning of facts, the competing interests and the ultimate
•
perception of the balancing that would subserve the larger pub Iic interest
and serve the majesty of rule oflaw. In this regard, we are reminded of
F
an ancient saying:-
"yadapi siddham, /aka viruddham
Na adaraniyam, na acharaniyam"
The aforesaid saying lays stress on public interest and its
significance and primacy over certain individual interest. It may not thus
G
have general application, but the purpose ofreferring to the same is that
• on certain occasions it can be treated to be appropriate.
54. There may be a perception that if principle of primacy is to
be followed, then the right of one gets totally extinguished. It has to be
"(2016)9 sec 541
H
. 988 SUPREME COURT REPORTS · . [2017) l S.C.R.

A borne in mind that total extinction is not balancing. When balancing act
is done, the right to fair trial is not totally crippled, bHt it is curtailed to
some. extent by which the accused gets the right• of fair trial and
simultaneously, the victims feel that the fair trial is conducted and the
court feels assured· that there is a fair trial in respect of such cases.
That apart, the faith of the collective is reposed in the criminal justice
B
dispensation system and remains anchored.
55. While appreciating the concept of public interest in such a
situation, the Court is required to engage itself in construing the process
of fair trial which ultimately subserves the cause ofjustice and remains
closer to constitutional sensibility. An accused, in the name of fair trial,
c cannot go on seeking adjournments defeating the basic purpose behind
the conducting of a trial as enshrined under Section 309 CrPC. He
cannot go on filing applications under various provision~ of CrPC, whether
tenable or not, and put forth a plea on eachand ~very occasion on the
bedrock that principle of fair trial sanctions it. In such·a situation, as has
D been held by this Court, the prosecution which· repre'sents the cause of
collective and the victim, who fights forremedyofhis individual grievance,
is allowed to have a say and the court is not expected to be a silent
spectator. Thus, the discord that arises when there is intra-conflict in
the same fundamental right especially, in the context of fair trial, it has to
be resolved regard being had to the obtaining fact situation. An ac~used
E who has been able to, by his sheer presence, erode the idea of.safety of
a witness in court or for that matter impairs and rusts the faith of a
victim in the ultimate justice and such erosion is due to fear psychosis
prevalent in the atmosphere of trial, is not to be coun~enanced as it is an
unconscionable situation. Such a hazard is not to be silently suffered
F · because the "Majesty of Justice" does not allow such kinds of complaints
to survive. Thus analysed, the submission of Mr. Naphade that shifting
of the accused outside the Siwan Jail would affect his right under Article
21 of the Constitution does not commend acceptation.
56. The next limb of controversy relates to exercise of power
G and jurisdiction. The plea that is propounded by Mr. Naphade is that in
the absence of any provision in the 1950 Act, there cannot be any direction
for shifting. According to him, any State action which prejudices the
right of an individual has to be backed by the authorjty oflaw and in the •
absence of law, such an order is not permissible. In this regard, he has
drawn inspiration from a passage from the 'state ofM.P. & anotlter v.
H
ASHA RANJAN v. STATE OF BIHAR & ORS. 989'
[DIPAK MISRA, J.]

Thakur Bharat Singh". It reads as follows:- A
"All executive action which operates to the prejudice of any
person must have the authority oflaw to support it, and the terms
ofArticle 358 do not detract from that rule. Article 358 expressly
authorises the State to take legislative or executive action provided ·
such action was competent for the State to make or take, but for B
the provisions contained in Part Ill of the Constitution. Article
358 does not purport to invest the State with arbitrary authority
to take action to the prejudice of citizens and others: it merely
provides that so long as the proclamation of emergency subsists
laws may be enacted, and exclusive action may be taken in
pursuance oflawful authority, which ifthe provisions of Article
c
19 were operative would have.been invalid."
57. The aforesaid contention has a fundamental fallacy and,
therefore, the authority in ·Thakur Bharat Singh (supra) has no
application. In the case at hand, no State action is under challenge.
The plea of prejudice that has been advanced has no legs to stand upon D
as the petitioners have approached this Court for directions. it is well
settled in law that there is a distinction between a judicial function and
the legislative action, and similarly the executive action and a direction
from the Court. It has been lucidly clarified by the Constitution Bench
in State of W.B. & Ors v. Committee for Protection of Democratic E
Rights, West Bengal & Ors 37 • The question arose in the said case was
whether the High Court in exercise of jurisdiction under Article 226 of
the Constitution can direct the CBI established under the Delhi Special
Police Establishment Act, 1946 (for short, 'Special Police Act') to
investigate a cognizable offence which is alleged to have taken place
within the territorial jurisdiction of a State without the consent of the F
State Government. After referring to various provisions of the Special
Police Act, the Court posed the question "whether the restrictions imposed
on the powers of the Central Government would apply mutatis mutandis
to constitutional courts as well" and referring to various authorities,
recorded number of conclusions, of which we reproduce the relevant .G.
ones:-
"(i) The fundamental rights, enshrined in Part III of the
Constitution, are inherent and cannot be extinguished by any
"AIR 1967SCI170
"(20IOJ 3 sec s11 H
990 SUPREME COURT REPORTS (201 7] 1 S.C.R.

A constitutional or statutol)' provision. Any law that abrogates or
abridges such rights would be violative of the basic structure
doctrine. The actual effect and impact of the law on the rights
guaranteed under Part III has to be taken into account in
determining whether or not it destroys the basic structure.
B (ii) Article 21 of the Constitution in its broad perspective seeks
to protect the persons of their lives and personal liberties except
according to the procedure established by law. The said article
in its broad application not only takes within its fold enforcement
of the rights of an accused but also the rights of the victim. The
State has a duty to enforce the human rights ofa citizen providing
c for fair and impartial investigation against any person accused
of commission of a cognizable offence, which may include its
own officers. In certain situations even a witness to the crime
may seek for and shall be granted protection by the State.
(iii) In view of the constitutional scheme and the jurisdiction
D conferred on this Court under Article 32 and on the High Courts
under Article 226 of the Constitution the power ofjudicial review
being an integral part of the basic structure of the Constitution,
no Act of Parliament can exclude or curtail the powers of the
constitutional courts with regard to the enforcement of
E fundamental rights. As a matter of fact, such a power is essential
to give practicable content to the objectives of the Constitution
embodied in Part lll and other parts of the Constitution. Moreover,
in a federal constitution, the distribution of legislative powers
between Parliament and the State Legislature involves limitation
on legislative powers and, therefore, this requires an authority
F other than Parliament to ascertain whether such limitations are
transgressed. Judicial review acts as the final arbiter not only to
give effect to the distribution of legislative powers between
Parliament and the State Legislatures, it is also necessal)' to
show any transgression by each entity. Therefore, to borrow the
G words of Lord Steyn,judicial review is justified by combination
of"the principles of separation of powers, rule oflaw, the principle
of constitutionality and the reach ofjudicial review".
(iv) If the federal structure is violated by any legislative action,
the Constitution takes care to protect the federal structure by
ensuring that the Courts act as guardians and interpreters of the
H
ASHA RANJAN v. STATE OF BIHAR & ORS. 991
[DIPAK MISRA, J.)

Constitution and provide remedy under Articles 32 and 226, A
whenever there is an attempted violation. In the circumstances,
any direction by the Supreme Court or the High Court in exercise
of power under Article 32 or 226 to uphold the Constitution and
maintain the rule of law cannot be termed as violating the federal
structure.
B
(v) Restriction on Parliament by the Constitution and restriction
on the executive by Parliament under an enactment, do not
amountto restriction on the power of the Judiciary under Articles
32 and 226 of the Constitution."
And eventually, the Court answered the reference thus:- c
"ln the final analysis, our answer to the question referred is that
a direction by the High Court, in exercise of its jurisdiction under
Article 226 of the Constitution, to CBI to investigate a cognizable
offence alleged to have been committed with in the territory of a
State without the consent of that State will neither impinge upon D
the federal structure of the Constitution nor violate the doctrine
of separation of power and shall be valid in law. Being the
protectors of civil liberties of the citizens, this Court and the High
Courts have not only the power and jurisdiction but also an
obligation to protect the fundamental rights, guaranteed by Part
III in general and under Article 21 of the Constitution in particular, E
zealously and vigilantly."
58. The aforesaid decision compels us to repel the submission of
Mr. Naphade on this score which is to the effect tha(when no power is
conferred under the 1950 Act, the Court cannot exercise the power or
when the power is curtailed, the Court cannot issue directions. The F
controversy in the Constitution Bench pertained to direction by the High
Court to transfer the investigation to the CBI in respect of the crime that
occurs within the territory of the State and this Court held that the High
Court has the authority to so direct dc$pite the prohibition contained in
the Special Police Act. Therefore,(:,.; non-conferment of power under G
the 1950 Act would not prohibit the High Court, in exercise of its power
under Article 226 to transfer a case from one jail to another inside the
State depending upon the circumstances.
59. The question that arises in the case at hand pertains to exercise
of jurisdiction under Articles 32, 142 and 144 of the Constitution. It is
H
992 SUPREME COURT REPORTS (2017] I S.C.R.

A submitted by Mr. Naphade that an order under Article 142 cannot be
passed in violation of the rights under Part III of the Constitution nor
such an order can be inconsistent with the substantive provisions of the
relevant ~tatute. He has drawn out attention to the Constitution Hench
decision in Prem Clumd Garg &. a1u1t/1er y. Excise Commr, ".. In tbe
said case, the majority ruled that:- ·
B
"12 ...... The powers of this Court are no doubt very wide and
they are intended to be and will always be exercised in the interest
ofjustice. But that is not to say that an order can be made by this
Court which is inconsistent with the fundamental rights
guaranteed by Part Ill of the Constitution. An order whic~ this
c Court can make in order to do complete justice between the
parties, must notonly be consistent witli the fundamental ri'ghts'
guaranteed by the Constitution, but it cannot even be inconsistent
with the substantive provisions of the relevant statutory laws.
Therefore, we do not think it would be possible io hold that Article
D 142(1) confers upon this Court powers which can contravene
the provisions ofArticle 32."
60. Placing reliance on A.R. Antulay v. R.S. Nllyllk & anotller39,
Mr. Naphade would urge that the court cannot' pass an order in exercise
ofjurisdiction under Article 142 of the Constitution which will affect the
E fundamental right ofa person. In Antu/ay's case, the five-Judge Bench
in R.S. Nayak v. A.R. Antulay"°, had transferred the case from Special
Court under the Prevention of Corruption Act to the High Court in order
to expedite the trial. In doing so, as felt by the later judgment renJered·
by seven Judges, the Court had ignored the mandatory provision of
Section 7(2) of the Criminal Law Amendment Act, 1952 and, therefore,
F two rights of Antulay were violated, one, the accused could only be tried
by a Special Judge and secondly, he had a right of statutory appeal to the ·
High Court. The Court ruled that there was breach of fundamental rights
under Articles 14 and 21 of the Constitution. While elucidating the
principle under Article 142, Sabyasachi Mukharji, J. (as His Lodship
G then was) ruled:-
"The fact that the rule was discretionary did not alter the position.
Though Article 142(1) empowers the Supreme Court to pass
"AIR 1963 SC 996
"l 1988) 2 sec 602
H "'(1984)2SCC 183
ASHA RANJAN v. STATE OF BIHAR & ORS. 993
[DIPAK MISRA, J.]

any order to do complete justice between the parties, lhe court A
cannot make an order inconsistent with the fundamental rights
guaranteed by Part III of the Constitution. No question of
·inconsistency between Article 142( 1) and Article 32 arose.
Gajendragadkar,.J:, speaki.ng for· the majority of.the judges of.
this Court said that Article 142( I) did not confer any power on
B
this Court to contravene the provisions of Article 32 of the
Constitution. Nor did Article 1.45 confer power upon tr.is Court
to make rules, empowering it to contravene the provisions of the
fundamental right. At page 899 of the Reports, Gajendragadkar,
J., reiterated that the powers of this Court are no doubt very
wide and they are intended and "will always be exercised in the c
interests of justice''. But that i.s not to saY.that an ord.er car be
made by this Court which is inco~sistent with the fundamental
rights guaranteed by Part Ill of the Constitution, It .was
emphasised that an order which this Court could make in
order to do complete justice between the parties, must not
D
only be consistent with the fundamental rights guaranteed
by the Constitution, but it cannot even be inconsistent with
the substantive provisions of the relevant statutory. laws
(emphasis supplied). The court therefore, held that it was not
possible to hold that Article 142(1) conferred upon this Court
powers which could contravene the provisions of A11icle 32." .E
61. Relying on the aforesaid dictum, it is canvassed by Mr.
Naphade that when the transfer of an accused from one State to another
is not envisaged under the 1950 Act, and the concept of fair tria·I
commands that an accused has to be tried fairly and should not be removed
to a distant place where he would feel isolated and cut-off from. his F
relations and familiar milieu, for it would tantamount to violation of the
right as enshrined under Article 21 of the Constitution. He would further
contend that power under Article 142 cannot be exercised that would
create a dent in the fundamental right or would be inconsistent with the
statutory provisions. Controverting the aforesaid submission, Mr. Bhushan,
learned senior counsel for the :ietitioners has drawn our attention to a G
Constitution Bench judgment in Union Carbi<le Corporation (supra).
In paragraph 83, M.N. Venkatacha!iah, J, (as His Lordship' then was)
speaking forthe majority, opined thus:-
"lt is necessary to set at rest certain misconceptions in the
H
994 SUPREME COURT REPORTS [2017] 1 S.C.R.

A arguments touching the scope of the powers of this Court under
Article 142(1) of the Constitution. These issues are matters of
serious public importai1ce. The proposition that a provision in
any ordinary law irres.pective of the importance of the public
policy on which it is founded, operates to limit the powers of the
apex Court under Article 142(1) is unsound and erroneous. In
B
both Garg as well as Antu/CJ}' cases the point was one of violation
of constitutional provisions and constitutional rights. The
observations as to the effect of inconsistency with statutory
provisions were really unnecessary in those cases as the decisions
in the ultimate analysis turned on the breach of constitutional
c rights. We agree with Shri Nariman that the power of the Court
under Article 142 insofar as quash.ing of criminal proceedings
are concerned is not exhausted by Section 320 or 321 or 482
CrPC or all of them put together. The power under Article 142 is
at an entirely different level and of a different quality. Prohibitions
or limitations or provisions contained in ordinary laws cannot,
D
ipso facto, act as prohibitions or limitations on the constitutional
powers under Article 142. Such prohibitions or limitations in the
statutes might embody and reflect the scheme of a particular
law, taking into account the nature and status of the authority or
the court on which conferment of powers - limited in some
E appropriate way - is contemplated. The limitations may not
necessarily reflect or be based on any fundamental considerations
of public policy. Sri Sorabjee, learned Attorney General, referring
to Garg case, said that 1imitation on the powers under Article
142 arising from "inconsistency with express statutory provisions
of substantive law" must really mean and be understood as some
F
express prohibition contained in any substantive statutory law.
He suggested that ifthe expression 'prohibition' is read in place
of 'provision' that would perhaps convey the appropriate idea.
But we think that such prohibition should also be shown to be
based on some underlying fundamental and general issues of
G public policy and not merely incidental to a particular statutory
scheme or pattern. It will again be wholly incorrect to say that
powers under Article 142 are subject to such express statutory
prohibitions. That would convey the idea that statutory provisions ·
override a constitutional provision. Perhaps. the proper way of
expressing the idea is that in exercising powers under Article
H
ASHA RANJAN v. STATE OF BIHAR & ORS. 995
[DIPAK MISRA, J.]

142 and in assessing the needs of"complete justice" of a cause A
or matter, the apex Court will take note of the express prohibitions
in any substantive statutory provision based on some fundamental
principles of public policy and regulate the exercise of its power
and discretion accordingly. The proposition does not relate to the
powers of the Court under Article 142, but only to what is or is
B
not 'complete justice' of a cause or matter and in the ultimate
analysis of the propriety of the exercise of the power. No question
oflack of jurisdiction or of nullity can arise''.
[Emphasis supplied]
62. It is urged by Mr. Naphade that the said judgment is per
inc'uriam as it runs counter to what has been stated in Antulay (supra). c
Suffice it to say, we are bound by the view expressed in Union Carbide
Corporation (supra) which has appreciated the ratio of Antulay's case
in a particular manner. That apart, we have no hesitation in stating that
what has been stated in Union Carbide Corporation (supra) by
Venkatachaliah, J. is in accord with the constitutional scheme ofjustice. D
63. Mr. Naphade, learned senior counsel has also drawn our
attention to a Constitution Bench decision in Supreme Court Bar
Association v. Union of India and Anr. 41 • In the said case, the Court
dealing with the plenary power under Article 142 of the Constitution
opined that the plenary powers of this Court under Article 142 of the E
Constitution are inherent in the Court and are complementary to those
powers which are specifically conferred on the Court by various statutes
though are not limited by those statutes. These powers also exist
independent of the statutes with a view to do complete justice between
the parties. These powers are of very wide amplitude and are in the
nature of supplementary powers. This power exists as a separate and F
independent basis ofjurisdiction apart from the statutes. It stands upon
the foundation and the basis for its exercise may be put on a different
and perhaps even wider footing, to prevent injustice in the process of
litigation and to do complete justice between the parties. This plenary
jurisdiction is, thus, the residual source of power which this Court may G
draw upon as necessary whenever it is just and equitable to do so and in
particular to ensure the observance of the due process of law, to do
complete justice between the parties, while administeringjustice according
to law. Thereafter, the Court held:-

" t t 998) 4 sec 409 H
996 SUPREME COURT REPORTS [2017] I S.C.R.

A "There is no doubt that it is an indispensable adjunct to all other
powers and is free from the restraint ofjurisdiction and operates
as a valuable weapon in the hands of the Court to preveni
"clogging or obstruction of the stream of justice". It, however,
needs to be remembered thatthe powers conferred on the Court.
by Article 142 being curative in nature cannot be construed as
B
powers which authorise the Court to ignore the substantive rights
of a litigant while dealing with a cause pending before it. This
power cannot be used to "supplant" substantive law applicable
to the case or cause under consideration of the Court. Article
142, even with the width of its amplitude, cannot be used to build
c a new edifice where none existed earlier, by ignoring express
statutory provisions dealing with a subject and thereby to achieve
something indirectly which cannot be achieved directly .... "
64. The Court thereafter referred to the authorities in Delhi
Judicial Service Association v. State of Gujarat & ors'', Re, Vinay
D Chandra Mishra'-', Prem Chand Garg {supra), and Union Carbide
Corporation (supra), specially para 83 of the last decision and proceeded
to rule thus:-
"55. Thus, a careful reading of the judgments in Union Carbide
Corpn. v. Union of India; the Delhi Judicial Service Assn.
E case (supra) and Mohd. Anis case44 relied upon in V.C. Mishra
case (supra) show that the Court did not actually doubt the
correctness of the observations in Prem Chand Garg case
(supra). As a matter of fact, it was observed that in the
established facts of those cases; the observations in Prem Chand
Garg case had "no relevance". This Court did not say in any of
F those cases that substantive statutory provisions dealing expressly
with the subject can be ignored by this Court while exercising
powers under Article 142.
56. As a matter of fact, the observations on which emphasis has
been placed by us from the Union Carbide case, A.R. Ar.tulqy
G case and Delhi Judicial Service Assn. case go to show that
they do not strictly speaking come into any conflict with the
observations of the majority made in Prem Chand Garg case.

"(1991) 4 sec 406
"< 1995) 2 sec 584
H ,. 1994 Supp. (I) sec 145
ASHA RANJAN v. STATE OF BIHAR & ORS. 997
[DIPAK MISRA, J.]

It is one thing to say that "prohibitions or limitations in a statute" A
cannot come in the way of exercise ofjurisdiction under Article
142 to do complete justice between the parties in the pending
"cause or matter" arising out of that statute, but quite a different
•
thing to say that while execcisingjurisdiction under Article> 142,
this court can altogether ig1iore the substantive provisions ofa·
statute, dealing with the subject and pass orders concerning an ·. .B
issue which can be settled only through a mechanism prescribed
·in· another statute. This Court did not say so in Union Carbide
case (supra) either expressly or by implication and on the
contrary it has been held that the Apex Court will take note of
the express provisions of any substantive statutory law and C
regulate the exercise of its power and discretion accordingly.
" ·[emphasis added]
65. In this context, we may refer with profit to a two-Judge Bench
decision in Narendra Clwmpaklal Trivedi v. State of Gu]arar". In
the said case, question arose with regard to reduction of senten.ce that D.
had been imposed under Section 13(3) of the Prevention of Corruption
Act, 1988. The Court referred to the earlier decisions in
Vishwesltwaraiah Iron & Steel Ltd. v. Abdul Gani & Ors46 , Keshabhai
Ma/abhai Vankar v. State of Gujarat'', Laxmidas Morarji v. Behrose
Darab Madan" and held thus:-
E
" ... where the minimum sentence is provided, we think it would
not be at all appropriate to exercise jurisdiction under Article 142
of the Constitution oflndia to reduce the sentence on the ground
of the so-called mitigating factors as that would tantamount to
supplanting statutory mandate and further it would amount to
ignoring the substantive statutory provision that prescribes F
minimum sentence for a criminal act relating to demand and
acceptance of bribe. The amount may be small but to curb and
repress this kind of proclivity the legislature has prescribed the
minimum sentence. It should be paramountly borne in mind that
corruption at any level does not deserve. either sympathy or G
leniency. In fact, reduction of the sentence would be adding a

"(2012) 1 sec so ...
46
(1997)8SCC713
"1995 Supp. (3) sec 704
" (2009) 1osec 425
H
998 SUPREME COURT REPORTS (20 I 7] I S.C.R.

A premium. The law does not so countenance and, rightly so,
because corruption corrodes the spine of a nation and in the
ultimate eventuality makes the economy sterile."
Thus, the Bench did not think it apt to ignore the substantive
statutory provisions.
B 66. In this regard, we may also refer to the authority in Shamsu
Sulwra Beevi v. G Alex and another". In the said case, the Court
was dealing with a /is that pertained to an agreement of sale. There was
no prayer for amendment of the plaint to include the relief of compensation
for breach of contract in addition to the specific performance of the
c agreement. The relief was claimed under Section 28 of the Specific
Relief Act, 1963 but not under Section 21 of that Act. The High Court
came to the conclusipn that Section 28 would not be applicable to the
facts of the case but granted relief under Section 21 of the said Act. In
that context, the Court ruled thatthe High Court would not have granted
compensation under Section 21 in addition to the relief of specific
D performance in the absence of a prayer made to that effect either in the
plaint or amending the same at any later stage of the proceedings to
include the relief of compensation in addition to the relief of sp~cific
performance; that grant of such a relief in the teeth of express provisions
of the statute to the contrary is not permissible; that on equitable
E considerations court cannot ignore or overlook the provisions of the
statute, and that equity must yield to law.
67. In the context of the aforesaid authorities, the submission of
Mr. Naphade is to be appreciated. It is canvassed by him that Section
3 of the 1950 Act permits transfer of a prisoner outside the State under
F certain circumstances and, therefore, no other circumstance can be
visualized while exercising power under Article 142 of the Constitution
as that will be running counter to the substantive provisions of the statute.
He further submits that this Court cannot legislate under Article 142 and
equity must yield to the provisions of law.

G 68. There can be no doubt that equity cannot override law. As
far as the first aspect is concerned, we need not advert to the broad
platform on which Mr. Naphade has based his contention. Suffice it to
note that Section 3 of the 1950 Act bestows power on the State
Government to transfer an accused to another State after consulting the
" (2004 J s sec 569
H
-.
ASHA RANJAN v. STATE OF BIHAR & ORS. 999
[DIPAK MISRA, J.]

other State. Such an action by the State has to be totally controlled by A
the circumstances which find mention under Section 3. When the State
passes an order with the concurrence of another State, it is obliged to be
bound by the circumstances which are postulated under Section 3(1) of
the 1950 Act, but when the issue of fair trial emerges before the
constitutional court, Section 3 of the 1950 Act cannot be regarded so as
B
to restrain the court from what is 111c5ndated and required for a free and
fair trial. The statutory power is not such which is negative and curtails
power of the court to act in the interest of justice, and ensure free and
fair trial, which is of paramount importance for the Rule of Law. It only
controls the power of the exec11tive. Therefore, we are unable to accept
the submission of Mr. Naphade in this regard. c
69. Presently, we shall advert to the facts which we have stated
in the begiiming. The third respondent has already been declared as a
history-sheeter type 'A', that is, who is beyond reform. Till today, he has
been booked in 75 cases, out of which he had been convicted in 10
cases and presently facing trial in 45 cases. There is no dispute that he D
has been acquitted in 20 cases. Out of 45 cases, 21 cases are those
where maximum sentence is 7 years or more. He has been booked in 15
cases where he has been in custody and one such case relates to the
murder of the third son of the petitioner and other two cases are of
attempt to murder. He is an influential person of the locality, for he has
been a representative to the Legislative Assembly on two occa>ions and E
elected as a Member of Parliament four times. This is not a normal and
usual case. It has to be dealt with in the aforesaid factual matrix. A
history-sheeter has criminal antecedents and sometimes becomes a terror
in society. In Neeru Yadav v. State of U.P. and Anr. 50 , this Court,
while cancelling bail granted to a history-sheeter, was compelled to F
observe:-
"16 ..... A democratic body polity which is wedded to the rule of
law, anxiously guards liberty. But, a pregnant and significant one,
the liberty of an individual is not absolute. Society by its collective
wisdom through process of law can withdraw the liberty that it G
has sanctioned to an individual when an individual becomes a
danger to the collective and to the societal order. Accent on
individual liberty cannot be pyramided to that extent which would
bring chaos ancf anarchy to a society. A society expects
'" <2014) 16 sec sos
H
1000 SUPREME COURT REPORTS (2017] l S.C.R.

A responsibility and accountability from its members, and it desires .
that the citizens should obey the law, respecting it as a cherished
social norm. No individual can make an attempt to create a
concavity in the stem of social stream. It is impermissible.
Therefore, when an individual behaves in a disharmonious manner
ushering in disorderly things which the society disapproves, the
B
legal consequences are bound to follow. At that stage, the court
has a duty. It cannot abandon its sacrosanct obligation and pass
an order at its own whim or caprice. It has to be guided by the
established parameters of law."
We have referred to the aforesaid authority to highlight how the
c Court has taken into consideration the paramountcy of peaceful social
order while cancelling the order of bail, for the order granting bail was
passed without proper consideration of criminal antecedents cf the
accused whose acts created a concavity in the social stream.
70. Mr. Bhushan, learned senior counsel heavily relied on the
D authority in Ka/yan Chandra Sarkar v. Rajesfl Ranjan alias Pappu
Yadav and anotfler'1• It is urged.by him thatfactual matrix in t)le said
case and the present case is identical. In the said case, the Court n0ticed
that the respondent therein, Rajesh Ranjan alias Pappu Yadav while he
was in judicial custody, was found addressing an election meeting. The
E Court called for a report from the authorities cencemed requiring them
to explain on what authority the said ~espondent was allowed to address
a public meeting. The report filed by the CBI revealed that the respondent,
in collusion with the police authorities accompanying him to Madhepura,
had addressed a public meeting and the escort accompanying hiir took
him to various places which the respondent wanted to visit beyond the,
F scope of the production warrant. It had come to the knowledge of the
Court thaMhough his bailnmt been cancelled, the accused was never
taken into jail and, in fact, when he was arrested after the cancellation
of bail, he was taken to Patna and an urgent Medical Board was
constituted to examine him which opined that the accused required
G medical treatment at Patna Medical College and permitted him to slay in
the said Medical College. Taking various other facts into consideration,
the Court opined that the respondent had absolutely no respect for the
Rule of Law nor was he, in any manner, afraid of the consequences of
his unlawfuFltcts. It was also observed that, it was evident from the fact

.H " (2005) 3 sec 2s4
ASHA RANJAN v. STATE OF BlHAR & ORS. 1001
[DIPAK MISRA, J.]

that some of the illegal acts of the respondent were committed even A
when his application for grant of bail was pending. When the issue of
transfer from Beur Jail, Patna to a jail outside the State arose, a contention
1
was advanced that it would affect his fundamental right as has been
enunciated in Sunil Batra (II) (supra). The Court referred to Section 3
of the 1950 Act and in that context, opined that in an appropriate case,
B
such request can also be made by an undertrial prisoner or a detenu and
there being no statutory provisions contrary thereto, this Court in exercise
of its jurisdiction under Article 142 of the Constitution may issue
necessary direction.
71. The two-Judge Bench referred to the authorities in Supreme
Court Bar Associatio11 (supra) and Union Carbide Cotporation (supra) c
and ruled thus:-
"29. Despite some critici~ms in some quarters as regards the
correctness of the decision in Union Carbide (supra) we may
notice that in Mohd. Anis v. Union of India (supra) it was held
that the power of the Supreme Court under Article 142(1) cannot D
be diluted by Section 6 of the Delhi Special Police Establishment
Act, 1946."
72. The Court, thereafter, referred to the authorities in State of
Karnataka v. State of A.P. & Ors", State of W.B. & Ors v. Sampat
Lal & Ors-'·' As/wk Kumar Gupta & another v. State of U.P. & Ors" E
and eventually opined:-
"43. It is true that in a normal trial the Criminal Procedure Code
requires the accused to be present at the trial but in the peculiar
' circumstances of this case a procedure will have to be evolved,
which will not be contrary to the rights given to an accused under F
the Criminal Procedure Code but at the same time protect the
administration ofjustice. Theref9re, as he!~ by this Court in the
case of State of Maharashtra~v,_..p,:, Praful B. Desai 55 and
Sakshi v. Union of India" we think the above requirement of
the Code could be met by directing the trial by video-conferencing G
facility. In our opinion, this is one of those rare cases wherein a

" (2000) 9 sec 572
"(1985) I SCC317
,. (199ZJ s sec 201-
" (2003) 4 sec 601
"(2004) s sec 51s· H
1002 SUPREME COURT REPORTS [2017] I S.C.R.

A frequent visit from the place of detention to the court of trial in
Bihar would prejudice the security of both the respondent and
others involved in the case, apart from being a heavy burden on
the State exchequer. It is in this background CBI has submitted
that the prisons at Chennai, Palayamkottai Central Jail, Vellore
Central Jail, Coimbatore Central Jail all in the State of Tamil
B
Nadu and Mysore Central Jail in the State of Karnataka have
video-conferencing facilities. Therefore the respondent can be
transferred to any one of those jails.
44. While it is true that it is necessary in the interest ofjustice to
transfer the respondent out of the State of Bihar, we are required
c to keep in mind certain basic rights available to the respondent
which should not be denied by transferring the respondent to
any one of the jails suggested by CBI. It will cause some hardship
to the wife and children of the respondent who we are told are
normally residents of Delhi, his wife being a Member of
D Parliament and two young children going to school in Delhi. Taking
into consideration the overall fact situation of the case, we think
it appropriate that the respondent be transferred to Tihar Jail at
Delhi and we direct the seniormost officer in charge ofTihar Jail
to make such arrangements as he thinks are necessary to prevent
the reoccurrence of the activities of the respondent of the nature
E referred to hereinabove and shall allow no special privileges to
him unless he is entitled to the same in law. His conduct during
his custody in Tihar Jail will specially be monitored and ifnecessary
be reported to this Court. However, the respondent shall be
entitled to the benefit of the visit of his family as provided for
F under the Jail Manual ofTihar. He shall also be entitled to such
categorisation and such facilities available to him in law.
45. We also direct that the trial of the case in Patna shall continue
without the presence of the appellant by the court, dispensing
such presence, and to the extent possible shall be conducted
G with the aid of video-conferencing. However, in the event of the
respondent making any application for his transfer for the sole
purpose of being present during the recording of the statement
of any particular witness, same will be considered by the learned
Sessions Judge on its merit and if he thinks it appropriate, he
may direct the authorities ofTihar Jail to produce the accused
H
ASHA RANJAN v. STATE OF BIHAR & ORS. 1003
[DIPAK MISRA, J.]

before him for that limited purpose. This, however, will be in a A
rare and impCYrtant situation only and if such transfer order is
made the respondent shall be taken from Tihar Jail to the court
concerned and if need be, detained in appropriate jail at the place
of trial and under the custody and charge of the police to be
specially deputed by the authorities ofTihar Jail who shall bear
B
in mind the factual situation in which the respondent has been
transferred from Patna to Delhi."
The aforesaid authority stands in close proximity to the case at
hand. The present case, in fact, frescoes a different picture and projects
a sad scenario compelling us to take immediate steps, while safeguarding
the principle of fair trial for both the sides. c
73. It is fruitful to note that in Dr. Praful B. Desai (supra) it
has been clearly held that recording of evidence by way of video
conferencing is valid in law.
74. In view of the aforesaid analysis, we record our conclusions D
and directions in seriatim:-
(i) The right to fair trial is not singularly absolute, as is perceived,
from the perspective of the accused. It takes in its ambit and
sweep the right of the victim(s) and the society at large.
These factors would collectively allude and constitute the E
Rule of Law, i.e., free and fair trial.
(ii) The fair trial which is constitutionally protected as a substantial
right under Article 21 and also the statutory protection, does
invite for consideration a sense of conflict with the interest
of the victim(s) or the collective/interest of the society. When
F
there is _an intra-conflict in respect of the same fundamental
right from the true perceptions, it is the obligation of the
constitutional courts to weigh the balance in certain
circumstances, the interest of the society as a whole, when
· it would promote and instill Rule of Law. A fair trial is not
what the accused wants in the name of fair trial. Fair trial G
must soothe the ultimate justice which is sought individually,
but is subservient and would not prevail when fair trial requires
transfer of the criminal proceedings.
(iii) A wrongful act of an individual cannot derogate the right of
H
1004 SUPREME COURT REPORTS [2017] 1 S.C.R.

A fair trial as that interest is closer, especially in criminal trials,
to the Rule of Law. An accused cannot be permitted to
jettison the basic fundamentals of trial in the name of fair
~~. ..
(iv) The weighing of balance between the two perspecti"es in
B case of fair trial would depend upon the facts and
circumstances weighed on the scale of constitutional norms
and sensibility and larger public interest.
(v) Section 3 of the l 950Act does not create an impediment on
the part the court to pass an order of transfer of ari. accused
c or a convict from one jail in a State to another prison in
another State because it creates a bar on the exerc;se of
power on the executive only.
(vi) The Court in exercise of power under Article 142 of the
Constitution cannot curtail the fundamental rights of the
D citizens conferred under the Constitution and pass orders in
violation of substantive provisions which are based on
fundamental policy principles, yet when a case of the present
nature arises, it may issue appropriate directions so that
criminal trial is conducted in accordance with law. It is the
obligation and duty of this Court to ensure free and fair trial.
E
(vii)The submission that this Court in exercise of equity jurisdiction
under Article 142 o.f the Constitution cannot transfer the
accused from Siwan Jail to any other jail in another State is
unacceptable as the basic premise· of the said argument is
efroneous, for while addressing the issue of fair trial, the
F Court is not exercising any kind ofjurisdiction in equity.
75. In view of the aforesaid conclusions, we direct the State of
Biharto transfer the third respondent, M. Shahabuddin, from Siwan Jail,
District Siwan to Tihar Jail, Delhi and hand over the prisoner to the
competent officer ofTihar Jail after giving prior intimation for his transfer
G in Delhi. Needless to say, that the authorities escorting the third
respondent from Si wan Jail to Tihar Jail would strictly follow the rules
applic'able to the transit prisoners and no special privilege shall be
extended. The transfer shall take place within a week hence. Thereafter,
the trial in respect of pending trials shall be conducted by video
conferencing by the concerned trial court. The competent authority in
H
ASHA RANJAN v. STATE OF BIHAR & ORS. 1005
[DIPAK MISRA, J.]

Tihar Jail and the competent authority of the State ofBihar shall make A
all essential arrangements so that the accused and the witnesses would
be available for the purpose of trial through video conferencing. A copy
of this order shall forthwith be communicated to the Home Secretary,
Government of Bihar, Superintendent of Siwan Jail and the Inspector
General, Prisons, Tihar Jail, Delhi. All concerned are directed to act in
B
aid of the aforesaid order as contemplated under Article 144 of the
Constitution.
76. We have noted that the High Court of Patna has granted
stay in certain proceedings. The High Court is requested to dispose of
the said matters on their merits within four months hence. A copy of this
order be sent to the Registrar General, High Court of Patna for placing c
the same before the learned Acting Chief Justice.
77. In view of the aforesaid analysis, Writ Petition (Criminal)
No. 147 of2016 stands disposed of. Similarly, Writ Petition (Criminal)
No. 132 of 2016 also stands disposed of except for the prayer seeking
direction to register FIR against Shri Tej Pratap Yadav, Health Minster D
of Bihar and S.P., Police of Siwan District, for which the matter be listed
for further hearing at 2.00 p.m. on 21st of April 2017.

Nidhi Jain Writ Petitions disposed of.

E