CENTRAL BUREAU OF INVESTIGATIONversusHOPESON NINGSHEN & ORS.

                         [2010] 5 S.C.R. 666


A        CENTRAL BUREAU OF INVESTIGATION (C.8.1.)
                                   v.
                  HOPESON NINGSHEN & ORS.
           (Transfer Petition (Crl.) Nos. 219-220 of 2009)

B                                        .
                             MAY 3, . 2010
    [K.G. BALAKRISH.NAN, CJI., DEEPAK VERMA AND DR.
                    B.S. CHAUHAN, JJ.]

         Code of Criminal Procedure, 1973:
c
           s. 406 - Transfer of cases of kidnapping and murder
    against accused, an activist of a militant organization, pending
    in State of Manipur - Sought by CBI to a court in Delhi -
    HELD: In order to ensure that a fair trial takes place.in the
0   cases in question, Court must account for the interests of all
    stakeholders, namely, the accused, the witnesses, the
    prosecutors, the near relatives of the victims as well as society
    at large - The instant case presents a complex situation
    where there is a certain degree of divergence in the interests
E   of the respective stakeholders - The CBI in its capacity as
    the investigating agency has clearly conveyed the risks
    associated with conducting the trial in Manipur - Even
    assuming that the apprehension about social unrest and
    communal tension between the Meities and the Nagas were
    a.little exaggerated, there can be no quarrel that there exists
F   a real possibility of a physical attack on the respondent-
    accused as long as he is in Manipur - It was precisely
    because of this consideration that the respondent-accused is
    being held in custody at a drstant location in Delhi -
    Furthermore,. conducting the trial in Manipur could also
G   reasonably lead to more friction in the State which in turn
    could affect the trial proceedings - Note must especially be
    taken of the fact that the killings took place in a region where
    opinions are sharply divided on the justness of the causes
    espoused by the NSCN (f M), an organization of which the
H                                   666
 CENTRAL BUREAU OF INVESTIGATION (C.8.1.) v.                667
        HOPESON NINGSHEN & ORS.
accused is a member - This creates a risk of intimidation of A
witnesses as well as undue prejudice seeping into the minds
of those who may be involved in the legal proceedings in·
different capacities - In the circumstances, the considered
 view of the Court is that it would be expedient in the ends of
justice to conduct the trial in Delhi - Accordingly, it is directed B
 that the cases be transferred from the Court of the Chief
Judicial Magistrate, Ukhrul, Manipur to a designated CBI
 Court (manned by a judicial officer of the rank of a Sessions
Judge) in New Delhi - Since there are 52 cited witnesses, CBI
 has undertaken to arrange for their travel between Manipur c
 and Delhi, so as to facilitate recording of their testimonies and
 subsequent cross-examination during trial - It must be
 remembered that the right of cross~examination is an
 essential element in the course of a criminal trial - As far as
 the near relatives of the deceased persons are concerned, the
                                                                    0
physical distance between Manipur and Delhi may cause
 some hindrance to their participation in the proceedings, but
 the transfer of the case is essential - In order to protect their
interests, CBI as well as the Government of Manipur is
 directed to render full assistance to victim's legal heirs in the E
 matter of legal representation by way of engaging advocates
 of their choice -The applicant has agreed to arrange for the
 to-and-fro journey and stay etc., for one member belonging
 to the families of each of the deceased persons on the dates
 of hearing.
                                                                    F
      Maneka Sanjay Gandhi v. Rani Jethmalani, (1979)
 2 SCR 378 = (1979) 4 SCC 167; Zahira Habibulla H. Sheikh
 v. State of Gujarat (2004) 4 SCC 157, referred to.

                      Case Law Reference:
                                                                   G
     (1979) 2 SCR 378          referred to           para 10
     c2004) 4 sec 151          referred to           para 11

      CRIMINAL ORIGINAL JURISDICTION : Transfer Petition
(Crl.) No. 219-220 of 2009.                                        H
    668       SUPREME COURT REPORTS·                [2010] 5 S.C.R.


A       Transfer Petition Under Section 406 of the Code of
    Criminal Procedure.

        P.P. Malhotra, ASG, Siddarth Luthra (A.C.), Colin
    Gonsalves, Abantee Dutta, Ashdeep Singh, P.K. Dey, Shweta
    Verma, A.K. Sharma (for B. Krishna Prasad), Kamini Jaiswal,
8
    Khwairakpam Nobin Singh for the appearing parties.

          The following Order of the Court was delivered

                                  ORDER
c        1. The Central Bureau of Investigation [Hereinafter 'CBI']
    has approached this Court by way of Transfer Petition (Criminal)
    No. 219-220 of 2009 .as contemplated under Section 406 of
    the Code of Criminal Pro~edure [Hereinafter 'CrPC'], seeking
    transfer of cases RC IMPH 2009/S0002 and RC IMPH 2009/
D · S0003, both dated 02-04-09, from the Court of the Chief
    Judicial Magistrate, Ukhrul, Manipur to a competent Criminal
    court in Delhi.

          2. In these cases, the respondent has been accused of the
E   kidnapping and murder of three government employees in the
    State of Manipur. It would be useful to provide an overview of
    the fact-situation leading up to the present litigation. On 13-2-
    2009, Dr. Thingnam Kishan Singh (S.D.O., Kasom Khullen,
    Distt. Ukhrul) along with five staff members was abducted by
F   militants while on their way from Ukhrul to Kasom Khullen. On
    14-2-2009, three of the abducted persons, namely Sh. Ram
    Singh Siro, Sh. Ramthing Singlai and Sh. Kapangkhui Jajo
    were released. Following this, a case bearing FIR No. 8(2)/
    2009 was registered under Sections 365, 368 and 34 of the
G   IPC at the Ukhrul Police Station in respect of the missing
    persons. However, on 17-2-2009, dead bodies of Dr. Thingnam
    Kishan Singh, Sh. Y. Token Singh and Sh. A. Rajen Sharma
    were recovered from the bank of river Taphao Kuki in the
    proximity of National Highway-39 in Senapati District, Manipur.
H   tn light of the discovery of the dead bodies, a case bearing FIR
  CENTRAL BUREAU OF INVESTIGATION (C.B.I.) v.                 669
         HOPESON NINGSHEN & ORS.
No. 3(2)/2009 was registered under Sections 302 and 400 of            A
the IPC at the Senapati Police Station. These killings had
provoked an outcry in the State of Manipur and protests were
held by several groups. In fact a Joint Action Committee (JAC)
had been formed by several civil society groups to mobilize
opinion about this case. Having regard to the seriousness of          B
the crime, the Government of Manipur thought it fit to transfer
the investigation into these cases to the CBI, which was
effected by way of a notification dated 19-2-2009 as
contemplated under Section 6 of the Delhi Special Police
Establishment Act. In pursuance of the same, CBI acting through       C
its Imphal Branch registered cases [RC IMPH 2009/S0002 and
RC IMPH 2009/S0003, both dated 2-04-2009] on the transfer
of the above-mentioned Fl Rs.

      3. Subsequent investigation pointed to .the involvement of
the respondent in the abduction and killing of the deceased           D
persons. The respondent, who is an activi~t of the NSCN (IM)
a militant organisation, was arrested by CBI on 29-05-2009.
He was then produced before the Chief Judicial Magistrate in
Ukhrul District, who remanded him to police custody till 12-06-
2009, which was subsequently extended. In the meanwhile,              E
there had been considerable unrest in relation to this case. The
Counsel for CBI has drawn our attention to the fact that among
the government employees who had been abducted on 13-2-
2009, three persons released on 14-02-2009 were of Naga
ethnicity whereas the three deceased persons were of Metei            F
ethnicity. In addition to the social unrest created in wake of the
killings, there is also an apprehension of conflict between
persons belonging to these communities since the alleged
killers were of Naga ethnicity. Irrespective of such an
apprehension, CBI has urged that the trial in these cases be          G
transferred to Delhi, in view of the specific threat to the life of
the respondent-accused which could frustrate the objective of
conducting a fair trial. Reliance has been placed on the
correspondence between the Director General of Police, Govt.
of Manipur and a CBI officer (dated 04-06-2009), the relevant         H
    670       SUPREME COURT REPORTS                 [201 O] 5 S.C.R.

A   extracts of which are reproduced below:-

          " ... It may be recalled that on 29.05.2009 when Shri
          Hopeson Ningshen was brought to Imphal for production
          before the CJM Ukhrul for police remand, a mob of
          considerable strength gathered near the airport with
B
          intention to cause harm to Shri Hopeson Ningshen. This
          was despite keeping the information about the production
          of the accused Ningshen a secret. The members of the
          JAC and general public are now aware that Shri Ningshen
          has been remanded to police custody for 15 (fifteen) days
c         and he is to be produced again before CJM Ukhrul after
          expiry of the police remand period. Considering the highly
          emotive nature of this case with serious possibility of
          ethnic clash between Meities and Nagas, it is felt that the
          very presence of Shri Ningshen in Manipur is likely to lead
D         to serious law and order problem, breach of peace,
          violence and eminent threat to the life and safety of the
          accused."

       4. The CBI had instituted a transfer petition before this
E Court on 08-06-2009. In the intervening period the respondent-
  accused has been brought to Delhi for interrogation and he is
  presently being held in custody in Tihar Jail. In the meanwhile,
  the investigation in these cases has also proceeded and the
  requisite charge-sheet under Section 173 of the CrPC has
F been framed.

        5. Shri P.P. Malhotra, learned ASG appearing on behalf
  of the CBI has contended that it would be in the interest of a
  fair trial to transfer the cases to a competent. Criminal Court in
  Delhi. It was urged that proceeding with the trial in Manipur is
G likely to cause further social unrest as well as flaring up of
  communal tensions which could ultimately have an adverse
  impact on the integrity of the criminal trial. In particular, it was
  urged that there existed a real danger of the accused being
  physically attacked during the pendency of the trial.
H Furthermore, there was also the danger of witnesses being
 CENTRAL BUREAU OF INVESTIGATION (C.B.I.) v.                671
        HOPESON NINGSHEN & ORS.
intimidated and the undue harassment of the victims' families. A
In the proceedings before us, the counsel appearing on behalf
of the State of Manipur has not objected to the directions sought
by CBI. In fact, the State Government has taken a positive stand
that looking at the situation prevalent even today, it cannot
guarantee the safety of the respondent-accused.                   B

    6. Shri Siddharth Luthra, Sr. Ad\/., appeared before this
Court as an amicus curiae in the present matter.

      7. However, the near relatives of the deceased persons
have objected to the transfer of the cases under Section 406 C
of CrPC. One line of reasoning taken by these parties was that
the investigating agencies have exaggerated the
apprehensions about the social unrest and the law and order
problems, which may arise if the trial were to proceed in
Manipur. In the written submissions, it has been suggested that D
the predictions about communal tension and a physical attack
~n the accused are misplaced and that the police and judicial
system in Manipur are robust enough to prevent undue
interference with the criminal trial. It was further suggested that
there are some other unexplored angles in relation to the killings E
of the three government employees and that the transfer of the
case away from Manipur was being sought at the behest of
some corrupt local officials. We do not find any merit in the latter
 line of reasoning.
                                                                   F
     8. Shri Colin Gonsalves, Sr. Adv., did raise a significant
point about the interests of the near relatives of the deceased
persons in the course of the criminal proceedings. Our attention
was drawn to the recently notified amendments to the CrPC,
wherein some provisions have been inserted to ensure the
meaningful participation of victims in the criminal justice system. G
In this regard, we can refer to Sections 2 and 3 of the Code of
Criminal Procedure (Amendment) Bill, 2008 which provide the
following:

     2. In section 2 of the Code of Criminal Procedure, 1973       H
    672       SUPREME COURT REPORTS                    [2010] 5 S.C.R.


A         (hereinafter referred to as the principal Act), after clause
          (w), the following clause shall be inserted, namely:-

          '(wa) "victim" means a person who has suffered any loss
          or injury caused by reason of the act or omission for which
B         the accused person has been charged and the expression
          "victim" includes his or her guardian or legal heir;'

          3. In section 24 of the principal Act, in sub-section (8), the
          following proviso shall be inserted. namely:-

C         "Provided that the Court may permit the victim to engage
          an advocate of his choice to assist the prosecution under
          this sub-section."

    In this regard, concerns were expressed that the transfer of the
    case from Manipur to Delhi would make it quite difficult for the
D   near relatives of the deceased persons to participate in the trial
    proceedings, either by way of legal representation or any other
    conceivable method. It was therefore urged that if such a
    transfer is indeed directed by this Court in exercise of the power
    under Section 406 of CrPC, then some directions be given to
E   protect the interests of the near relatives of the deceased
    persons.

         9. We must reiterate that the foremost consideration for
    directing the transfer of cases under Section 406 of CrPC is
F   to examine what is expedient in the ends of justice. This is self-
    evident from a bare reading of the relevant provision which
    states:

          406. Power of Supreme Court to transfer cases and
          appeals. - (1) Whenever it is made to appear to the
G         Supreme Court that an order under this section is
          expedient for the ends of justice, it may direct that any
          particular case or appeal be transferred from one High
          Court to another High Court or from a Criminal Court
          subordinate to one High Court to another Criminal Court
H
  CENTRAL BUREAU OF INVESTIGATION (C.8.1.) v.                  673
         HOPESON NINGSHEN & ORS.

     of equal or superior jurisdiction subordinate to another High     A
     Court.



    10. This court has of course given orders under the above-
mentioned provision in the past. Since this is a discretionary         B
power, it may be instructive to refer to the following observations·
made in the matter reported as Maneka Sanjay Gandhi v. Rani
Jethmalani, (1979) 4 SCC 167, (V.R. Krishna Iyer, J. at Paras.
2 and 5):
                                                                       c
     "2. Assurance 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 easy
     availability of legal services or like mini-grievances.           D
     Something more substantial, more compelling, more
     imperiling, 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
                                                                       E
     case to case. We have to test the petitioner's grounds on
     this touchstone bearing in mind the rule that normally the
     complainant has the right to choose any court having
     jurisdiction and the accused cannot dictate where the case
     against him should be tried. Even so, the process of justice
                                                                       F
     should not harass the parties and from that angle the court
     may weigh the circumstances .

      . . . 5. A more serious ground which disturbs us in more
     ways than one is the alleged absence of congenial
     atmosphere for a fair and impartial trial. It is becoming a       G
     frequent phenomenon in our country that court proceedings
     are being disturbed by rude hoodlums and unruly crowds,
     jostling or cheering and disrupting the judicial hearing with
     menaces, noises and worse. This tendency of toughs and
     street roughs to violate the serenity of the court is             H
    674       SUPREME COURT REPORTS                    [2010] 5 S.C.R.

A         obstructive of the course of justice and must surely be
          stamped out. Likewise, the safety of the person of an
          accused or complainant is an essential condition for
          participation in a trial and where that is put in peril by
          commotion, tumult or threat on account of pathological
B         conditions prevalent in a particular venue, the request for
          a transfer may not be dismissed summarily. It causes
          disquiet and concern to a court of justice if a person
          seeking justice is unable to appear, present one's case,
          bring one's witnesses or adduce evidence. Indeed, it is the
c         duty of the court to assure propitious conditions which
          conduce to comparative tranquility at the trial. Turbulent
          conditions putting the accused's life in danger or creating
          chaos inside the court hall may jettison public justice. If this
          vice is peculiar to a particular place and is persistent the
          transfer of the case from that place may become
D
          necessary. Likewise, if there is general consternation or
          atmosphere of tension or raging masses of people in. the
          entire region taking sides and polluting the climate, vitiating
          the necessary neutrality to hold a detached judicial trial, the
          situation may be said to have deteriorated to such an extent
E         as to warrant transfer .... "

      11. The observations quoted above were also cited with
  approval in Zahira Habibulla H. Sheikh v. State of Gujarat,
  (2004) 4 SCC 157, wherein the Court had also observed
F (Pasayat, J. at Para. 36):

          "... It has to be unmistakably understood that a trial which
          is primarily aimed at ascertaining the truth has to be fair
          to all concerned. There can be no analytical, all-
          comprehensive or exhaustive definition of the concept of
G
          a fair trial, and it may have to be determined in seemingly
          infinite variety of actual situations with the ultimate object
          in mind viz. whether something that was done or said
          either before or at the trial deprived the quality of fairness
          to a degree where a miscarriage of justice has resulted. It
H
  CENTRAL BUREAU OF INVESTIGATION (C.B.I.) v.              675
         HOPESON NINGSHEN & ORS.
    will not be correct to say that it is only the accused who A
    must be fairly dealt with. That:would be turning a Nelson's
    eye to the needs of the society at large and the victims. or
    their family members and relatives. Each one has an inbuilt
    right to be dealt with fairly in a criminal trial. Denial of a
    fair trial is as much injustice to the accused as is to the B
    victim and the society. Fair trial obviously would mean a
    trial before an impartial judge, a fair prosecutor and
    atmosphere of judicial calm. Fair trial means a trial in which
    bias or prejudice for or against the accused, the witnesses,
    or the cause which is being tried is eliminated. If the·      c
    witnesses get threatened or are forced to give false
    evidence that also would not result in a fair trial. The failure
    to hear material witnesses is certainly denial of fair trial."

      12. While there are several other instances where this
Court has passed orders in exercise of the power contemplafed D
by Section 406 of CrPC, the observations cited above are
sufficient to guide the adjudication of the present case. In order
to ensure that a fair trial takes place in the cases in question,
we must account for the interests of all stakeholders, namely
the accused, the witnesses, the prosecutors, the near relatives E
of the victims as well as society at large. We are indeed
confronted with a complex situation where there is a certain
degree of divergence in the interests of the respective
stakeholders. The CBI in its capacity as the.investigating agency
has clearly conveyed the risks associated with conducting the F
trial in Manipur. Even if one were to concede that the
apprehension about social unrest and communal tension
between the Meities and the Nagas were a little exaggerated,
there can be no quarrel that there exists a real possibility of a
physical attack on the respondent-accused as long as he is in G
Manipur. It was precisely because of this consideration that the
respondent-accused is being held in custody at a distant
location in Delhi. Furthermore, conducting the trial in Manipur
could also reasonably lead to more friction in the State of
Manipur which in turn could affect the trial proceeding~ H




                                                                       ....
    676      SUPREME COURT REPORTS                   [2010] 5 S.C.R.


A   themselves. We must especially take note of the fact that the
    killing,s took place in a region where opinions are sharply
    diyided on the justness of the causes espoused by the NSCN
    (IM) and that the respondent-accused is a member of the same
    organisation. This creates a risk of intimidation of the witnesses
B   as well as undue prejudice seeping into the minds of those who
    may be involved in the legal proceedings in different capacities.

         13. In this scenario, in our considered view it would be
    expedient in the ends of justice to conduct the trial in Delhi. We
    accordingly direct that the impugned cases be transferred from -
C   the Court of the Chief Judicial Magistrate, Ukhrul, Manipur to a
    designated CBI Court (manned by a judicial officer of the rank
    of a Sessions Judge) in New DelhL

         14. Since there are 52 cited witnesses, CBI has
D   undertaken to arrange for their travel between Manipur and
    Delhi, so as to facilitate recording of their testimonies and
    subsequent cross-examination during trial. It must be
    remembered that the right of cross-examination is an essential
    element in the course of a criminal trial. As far as the near
E   relatives of the deceased persons are concerned, we
    understand that the physical distance between Manipur and
    Delhi may cause some hindrance to their participation in the
    proceedings, but the transfer of the case is essential in light of
    the considerations discussed above. In order to protect their
F   interests, we direct the CBI as well as the Government of
    Manipur to render full assistance to the victim's legal heirs in
    the matter of legal representation by way of engaging advocates
    of their choice.                                                 ·

        15. In fact, looking to the interests of the victim's families,
G   we thought it fit to safeguard their interests as well. On a
    suggestion being made, Mr. P.P. Malhotra, learned ASG,
    agreed to arrange for the to-and-fro journey and stay etc., for
    one member belonging to the families of each of the deceased
    persons on the dates of hearing. It was indeed a fine gesture.
H   Apart from the above, the learned ASG has also suggested that
  CENTRAL BUREAU OF INVESTIGATION (C.8.1.) v.               677
         HOPESON NINGSHEN & ORS.
even though a list of 52 witnesses has been prepared, efforts     A
will be made to reduce the number of witnesses to be
examined in an endeavour to examine only the necessary
witnesses. It is further necessary to direct that none of the
parties should seek undue adjournments in the matter and
should render all possible help to conclude the trial at the      B
earliest.

       16. The present petitions are disposed off accordingly.

R.P.                            Transfer Petitions disposed of.