AFJAL ALI SHA @ ABJAL SHAUKAT SHA versus STATE OF WEST BENGAL & ORS

Citation: [2023] 2 S.C.R. 1090 · Decided: 17-03-2023 · Supreme Court of India · Bench: SURYA KANT · Disposal: Directions issued

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Judgment (excerpt)

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1090
SUPREME COURT REPORTS
[2023] 2 S.C.R.
AFJAL ALI SHA @ ABJAL SHAUKAT SHA
v.
STATE OF WEST BENGAL & ORS.
(Transfer Petition (Criminal) No. 409 of 2021)
MARCH 17, 2023
[SURYA KANT AND J. K. MAHESHWARI, JJ.]
Code of Criminal Procedure, 1973 – ss. 321, 406 –
Constitution of India – Art. 139A – Supreme Court Rules, 2013 –
Or. 39 – Petitioner-brother of deceased sought transfer of the
criminal trial pending in West Bengal to Assam – Victim-deceased
was shot dead by unknown persons – Respondents-accused were
charged u/s. 302 r/w s.120B of the IPC and u/ss. 25 and 27 of the
Arms Act 1959 – Charge-sheet was filed – Trial commenced –
Respondent no.2 (main accused) was in the custody – During
pendency of trial, a notification issued by the State of West Bengal
directing the Public Prosecutor to apply u/s.321 of Cr.P.C. and
withdraw proceedings against respondents subject to consent of
trial Court – Notification challenged before the High Court –
Pursuant to the direction of the State, Public Prosecutor moved
application before the trial Court for withdrawal of the prosecution
case – This application was taken up by the Link Judge presiding
in the trial Court, despite case was listed for evidence – Link Judge
was informed regarding the challenge to the notification in the High
Court, regardless thereto, he heard the application and allowed the
same – Respondents were acquitted – De-facto complainant filed
writ petition before the Single Judge of the High Court, which set
aside the notification of the State directing withdrawal of the case –
Division Bench set aside the order and remanded the matter for
fresh adjudication – Single Judge held that order of the Link Judge
would not be acted upon and respondent no.2 was not be released
from custody – Meanwhile, trial proceeded – Petitioner filed
application to declare the de-facto complainant hostile – However,
the said application was rejected – Petitioner filed transfer petition
– Petitioner alleged multiple abnormalities during the trial, such as
change of Public Prosecutor four times and harassment meted out
to the prosecution witnesses and relatives of the deceased – Held:
[2023] 2 S.C.R. 1090
1090
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No legal necessity to transfer the trial outside the State of West
Bengal – More than 90 witnesses, most of them Bengali speaking
are yet to be examined – Transfer may cause serious impediment in
the deposition of those witnesses and some of them may be reluctant
to travel to a far away place – However, considering all facts and
circumstances, following directions issued: (i) FIR No.495/2019
registered transferred from the Court of Additional Session Judge,
3rd Court, Tamluk, Purba Medinipur, West Bengal to the Court of
Chief Judge, City Sessions Court at Calcutta; (ii) Trial to be
conducted by the Chief Judge, City Sessions Court and case not to
be transferred to Additional Sessions Judge; (iii) Trial to be taken
on weekly basis; (iv) State directed to appoint a Special Public
Prosecutor on the recommendations of the Chief Judge, City Sessions
Court with prior approval of the High Court; (v) Wife of deceased
and petitioner and other crucial prosecution witnesses to be provided
with adequate security; (vi) De-facto complainant to be cross
examined by the Special Public Prosecutor; (vii) Respondent no.2
or any other accused who are in custody to be transferred to Central
Jail at Calcutta; (viii) Respondent no.2 not to be enlarged on bail
till the conclusion of trial save and except by the High Court; (viii)
Portfolio Judge of the High Court to monitor and supervise the
trial proceedings.
Code of Criminal Procedure, 1973 – s. 406 – The power of
transfer under Section 406, CrPC is to be exercised sparingly and
only when justice is apparently in grave peril and therefore can be
allowed only in exceptional cases considering the fact that transfers
may cast unnecessary aspersions on the State Judiciary and the
prosecution agency – Further the convenience of parties and
witnesses as well as the language spoken by them are also relevant
factors when deciding a transfer petition.
Issuing directions, the Court
HELD: 1. Section 406(2) of the CrPC provides that the
Supreme Court may transfer a case “only on the application of
the Attorney -General of India or of a party interested”.
Considering the apt and expansive interpretation of phrase ‘party
interested’ under Section 406(2) of the CrPC, it is held that the
Petitioner, being the real brother of the D

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