NDLI: Afjal Ali Sha @ Abjal Shaukat Sha Vs. State of West Bengal & Ors

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	Supreme Court Rules 406 power of transfer Cr.P.C ss. 321 Or. 39 2013
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Act(s) Referred	Constitution of India Code of Criminal Procedure, 1973 (2 of 1974)
Case(s) Referred	Referred Case 0 Referred Case 1 Referred Case 2 Referred Case 3 Referred Case 4 Referred Case 5 Referred Case 6 Referred Case 7 Referred Case 8 Referred Case 9 Referred Case 10 Referred Case 11 Referred Case 12
Case Type	Transfer Petition
Court	Supreme Court of India
Disposal Nature	Directions Issued
Headnote	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: 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.
Judge	Hon'ble Mr. Justice Surya Kant
Neutral Citation	2023 INSC 257
Petitioner	Afjal Ali Sha @ Abjal Shaukat Sha
Respondent	State Of West Bengal & Ors
SCR	[2023] 2 S.C.R. 1090
Judgement Date	2023-03-17
Case Number	409

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Afjal Ali Sha @ Abjal Shaukat Sha Vs. State of West Bengal & Ors

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