Case Note & Summary
The case arises from a transfer petition filed by Afjal Ali Sha, brother of the deceased Kurban Sha, seeking transfer of the murder trial (S.T. No. 1 (03) of 2020) from the Additional Sessions Judge, 3rd Court, Tamluk, Purba Medinipur, West Bengal to a competent court in Assam. The deceased was shot dead on 07.10.2019, and an FIR was lodged against Respondent No. 2 and others under Section 302 read with 120B IPC and Sections 25 and 27 of the Arms Act. After investigation, charges were framed against multiple accused. During trial, the State Government issued a notification on 26.02.2021 directing the Public Prosecutor to withdraw the case under Section 321 CrPC, which was promptly allowed by a Link Judge on 01.03.2021, leading to acquittal of the accused. The de-facto complainant challenged this before the Calcutta High Court, which set aside the withdrawal as arbitrary and mala fide. The High Court noted the State's contradictory stand of opposing bail earlier and then seeking withdrawal. The matter was remanded and eventually the High Court upheld the setting aside of the withdrawal. Meanwhile, the de-facto complainant resiled from his testimony, and the trial court refused to allow the petitioner's lawyer to cross-examine him as hostile, restricting such right to the Special Public Prosecutor. The petitioner then filed this transfer petition before the Supreme Court under Section 406 CrPC, arguing that a fair trial was impossible in West Bengal due to the State's mala fide actions and the hostile atmosphere. The Supreme Court examined the facts and found that the cumulative circumstances, including the State's attempt to withdraw the prosecution without valid reasons, the trial court's hasty acceptance of the withdrawal, and the subsequent conduct of witnesses, created a reasonable apprehension of bias. The Court held that to ensure a fair trial, it was necessary to transfer the case to a court in Assam. The Court allowed the transfer petition and directed the trial to proceed in a competent court in Assam, with the trial court to expedite the matter.
Headnote
A) Criminal Procedure - Transfer of Trial - Section 406 CrPC - Apprehension of Bias - Petitioner, brother of deceased, sought transfer of murder trial from West Bengal to Assam alleging that fair trial was impossible due to State's mala fide attempt to withdraw prosecution and hostile atmosphere - Court held that the cumulative circumstances, including the State's contradictory stand and the trial court's conduct, justified transfer to ensure fair trial (Paras 15-20). B) Criminal Procedure - Withdrawal of Prosecution - Section 321 CrPC - Mala Fides - State Government issued notification directing Public Prosecutor to withdraw case without any reason, despite previously opposing bail - High Court set aside the withdrawal as arbitrary and mala fide - Supreme Court affirmed that such withdrawal was not in public interest and vitiated the trial process (Paras 8-9, 14). C) Evidence Act - Hostile Witness - Section 154 - Right of Victim's Relative - De-facto complainant resiled from his examination-in-chief but was not declared hostile by Public Prosecutor - Trial Court allowed only Special Public Prosecutor to cross-examine him, not the petitioner's lawyer - Held that the victim's brother has locus to seek fair trial but cannot override prosecution's discretion under Section 301(2) CrPC (Paras 12, 18).
Issue of Consideration
Whether the criminal trial arising out of FIR No. 495 of 2019 pending in the Court of Additional Sessions Judge, 3rd Court, Tamluk, Purba Medinipur, West Bengal should be transferred to a competent court in the State of Assam on the ground that a fair trial is not possible in West Bengal.
Final Decision
The Supreme Court allowed the transfer petition and directed that the criminal trial S.T. No. 1 (03) of 2020 be transferred from the Court of Additional Sessions Judge, 3rd Court, Tamluk, Purba Medinipur, West Bengal to a competent court in the State of Assam. The trial court in Assam is to expedite the trial and conclude it as early as possible.
Law Points
- Transfer of criminal trial under Section 406 CrPC
- Withdrawal of prosecution under Section 321 CrPC
- Mala fides of State
- Fair trial
- Locus standi of victim's brother
- Hostile witness under Section 154 Evidence Act
- Role of Public Prosecutor under Section 301 CrPC
