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 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) NO. 132 OF 2016

Asha Ranjan ... Petitioner

Versus

State of Bihar & Ors.       ... Respondents

WITH

WRIT PETITION (CRIMINAL) NO. 147 OF 2016

Chandrakeshwar Prasad …Petitioner

Versus

Union of India & Ors. …Respondents  

J U D G M E N T

Dipak Misra, J.

Regard  being  had  to  the  similitude  of  prayers  and

considering  the  commonality  of  issues  exposited  in  these

Writ  Petitions,  they  were  finally  heard  together.  The

principal issue raised is disposed of by this singular order.

It is necessary to note that in Writ Petition (Criminal) No.

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132 of 2016 preferred by Asha Ranjan, it has been prayed

for issue of appropriate directions to the Central Bureau of

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 302/120B read with Section 34 of the Indian Penal

Code (IPC); to transfer the entire proceedings and trial  in

FIR  No.  362/16  dated  13.05.2016  registered  under  the

same Police 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  13.05.2016;  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  conspiracy   and  harboring  and  sheltering  the

proclaimed offenders in FIR No. 362/16 dated 13.05.2016.

In  this  Writ  Petition,  at  a  subsequent  stage,  Criminal

Miscellaneous Petition No. 17101 of 2016 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 of 2016 came to be

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filed.   In  the  said  Writ  Petition,  the  prayer  is  to  issue  a

direction to transfer respondent 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. 147 of 2016 are two fold and

in Writ Petition (Criminal) No. 132 of 2016 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 Siwan Jail to a jail 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  of  2016  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 same:-

“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;

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secondly,  to  issue  a  direction  to  C.B.I.  to investigate  into  certain  crimes;  and  thirdly,  to pass  appropriate  direction  to  register  an  F.I.R. against 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.   

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  (Crl.) No.147 of 2016.

As  far  as  the  third  prayer  is  concerned,  it  is seriously  opposed  by  Mr.  Surendra  Singh, learned senior  counsel  for  the  respondent  No.4 on  the  ground  that  there  is  no  warrant  or justification for lodging of an F.I.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  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 (Crl.) No.147 of 2016. 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.”

3. Thus,  we  are  presently  required  to  deal  with  the

transfer of the third respondent, M. Shahabuddin from the

Siwan  Jail,  Bihar  to  a  Jail  in  Delhi  keeping  in  view  the

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averments made in Writ Petition (Criminal) No. 147 of 2016

and  the  assertions  made  in  the  application  filed  in  Writ

Petition  (Criminal) No. 132 of 2016

4. The factual matrix in Writ Petition (Criminal) No. 132

of  2016,  as  unfolded,  is  that  on  13.5.2016  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 13.5.16 was registered under PS Nagar Thana, Dist.

Siwan  for  the  offences  punishable  under  Sections

302/120(B) and 34 of IPC.

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

transferred to the CBI.  It is asseverated that in the mean

time  certain  persons  have  been  arrested  and  some  have

surrendered to custody.  

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6. The factual exposé 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 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  Shahabuddin  and  after

conclusion  of  the  trial  he  stood convicted for  the  offence

under  Section  302  IPC  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

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 7.15 p.m. and soon thereafter he left the office and

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started moving towards the Station Road.  About 7.30 p.m.

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 10.9.2016,

Shahabuddin  was  released  on  bail  and  the  aforesaid

proclaimed offenders were seen in his company but apathy

reigned and the fear ruled so that no police official dared to

arrest them.  On 14.9.2016 petitioner 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 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 her entire family. Her petrification has been

agonizingly  articulated in the petition and by the learned

counsel, sometimes with vehemence and on occasions with

desperation.  

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9. At this juncture, we may advert to the facts in Writ

Petition (Crl.) No. 147 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  cases  he  has  been  convicted,  and  facing  life

imprisonment  in  two  cases  and  10  years  rigorous

imprisonment in one and 45 cases are pending for trial.  He

has been acquitted in twenty cases.  The first criminal case

against  respondent  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,  IPS  with

sophisticated  arms  for  which  they  were  sentenced  to

undergo imprisonment for 10 years.   Thereafter, his name

figured  in  the  murder  of  former  JNU  President,  Mr.

Chandrashekhar,  who  was  shot  dead  in  Siwan  on

31.3.1997.  It is alleged that he and his private army fired

upon the raiding party on 16.3.2002 when his house was

raided and in that incident, the vehicles of Deputy Inspector

General of  Police,  Saran range, District Magistrate,  Siwan

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and Superintendent of Police, Siwan were burnt.  From his

house, huge quantities of ammunition were recovered and

FIR  no.  32  of  2001  was  registered.   In  another  raid

conducted in 2005, large number of arms and ammunition

were recovered from the house of the third respondent and

FIR Nos. 41 to 44 of 2005 were registered.  In November,

2005 he was arrested by the joint team of Bihar and Delhi

police in connection with various cases.  It is put forth that

he  ran  a  parallel  administration  in  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 08.05.2007 under Section 364/34 IPC for

abduction with an intention to commit murder of CPI (ML)

worker  in  February,  1999,  whose  dead  body  was  never

traced.

10. It is set forth that in August 2004, three sons of the

petitioner 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

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escape  and  a  criminal  case  was  registered  against  him

under  Sections  341,  323,  380,  364,  435/34  IPC  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 IPC, which prayer was initially rejected on the ground

of delay but after 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.

11. On 18.05.2016, a raid was conducted by the district

administration at Siwan jail and District Magistrate, Siwan

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

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transfer  from Siwan to  Bhagalpur  jail  whereafter  he  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  the  respondent  No.  3  on

02.03.2016 in FIR No. 131/04 and further granted bail in

the murder’s case of third son of petitioner on 07.09.2016 in

the FIR No. 220/14. The petitioner as well as the State of

Bihar challenged the orders granting bail. The bail orders

have  been  set  aside  by  this  Court  in  Chandrakeshwar

Prasad v. State of Bihar and Anr.1. While setting aside

the order granting him bail, this Court has held:-   

“12.  In  the  instant  case,  having  regard  to  the recorded  allegations  against  the respondent-accused  and  the  overall  factual scenario,  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-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 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.

1 (2016) 9 SCC 443

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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 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 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 Siwan

jail to a jail outside the State of Bihar and conducting of the

trials in pending cases by video 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

Naphade, learned senior counsel along with Mr. M. Shoeb

Alam, 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

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Petition (Criminal) No. 132 of 2016 and Mr. Gopal Singh,

learned counsel for the State of Bihar.  

14. As  per  our  order  dated  17.01.2017,  the  grievance

against  the 4th respondent  in  Writ  Petition  (Criminal)  No.

132  of  2016  shall  be  heard  and  dealt  with  after

pronouncement of this judgment and hence, we shall  not

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 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 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

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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  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  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, for the 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  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  of  rhetorics  but  the

learned  senior  counsel  for  the  petitioners  and Mr.  Kislay

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Pandey, submitted with enormous 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 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 apt to reproduce the Chart:-

“CONVICTION CASES

Sl. No

FIR P.S. case No

Under Section Status of Trial conviction (with sentence)/ Pending/Acqu ittal (in series)

Stat us of app eal

Date  of Grant of bail  by District/ High Court

Period  of Imprison ment before grant  of bail

1 Muffasil  PS Case  No. 181/98  dt 18.09.98

147/341/342/44 8/504 IPC

2  Year imprisonment & 5000/- fine

- Bail 28.10.0 9 by HC Patna

0 days

2 C-2  34/05 Dt. 07.04.05

506 IPC 1  year imprisonment and  Rs.1000 fine

- Bail 28.10.0 9  by Spl. Court

3  yrs,  8 months, 8 days

3 Muffasil  PS case 61/90  Dt. 12.04.90

363/365 IPC 3  year imprisonment

- Bail 11.03.1 1  By  Spl. Court Siwan

0 Days

4 Hussainganj ps case No.14/99 dt. 07.2.99

364/34 IPC Life  & Rs.10,000/-

- Bail 21.10.9 9 by HC Patna

3  yrs  3 mon

5 Darauli ps C.No.  34/96 dt: 04.05.96

307/353/34 IPC 10  years  & Rs. 2000/-

Bail 21.10.0 9 by HC Patna

2  yrs  1 mon  21 days

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6 Hussainganj ps Case no.44/05  Dt. 24.04.05

25I-B)  A/26/35 Arms Act

3  Yrs imprisonment & 5000/- fine

- Bail 20.10.0 9 by HC Patna

2  yrs  9 mon  10 days

7 Hussainganj ps Case  no. 42/05 Dt:24.04.05

414  IPC  &  25 (I-B)/26 Arms Act

5  years imprisonment

Bail 16.07.1 1

5  yrs  8 mon  9 days

8 Muffasil ps Case  no. 131/04 Dt: 16.08.04

364/336/302/30 1 IPC

Life imprisonment

Bail 14.07.1 6 by HC Patna

6  yrs  10 months 5 days

9 Hussainganj ps  Case no.41/05 Dt: 24.04.05

411/414 IPC 3  yrs imprisonment

- Bail 28.10.0 9 by HC Patna

3  yrs  11 months 21 days

10 Pachruhi ps Case  no. 102/04 Dt. 18.10.04

392/411 IPC This  case  is merged  in Hussainganj ps  case  no. 41/05

-do-

ACQUITTED CASES

Sl. No. FIR P. S. Case No. …/dated Under Section 1 Siwan Town PS

Case No. 217/85 Dt. 02.09.85

307/323/341/34 IPC & 27 Arms Act

2 Siwan Town Case No.77/86  dt: 08.04.86

394 IPC

3 Siwan  Town  PS  case  no. 79/86 Dt. 10.04.86

399/402/411/412/414/216A  IPC  &25 A/26/35 Arms Act

4 Muffasil PS case no. 228/86 147/148/149/325/302 IPC & 27 Arms Act 3/5 Explosive Act

5 Hussainganj  PS  case  no. 125/88, Dt. 12.09.88

363/34 IPC

6 Siwan  Town  PS  case  no. 183/88 Dt: 10.09.88

307 IPC & 27 Arms Act

7 Siwan  Town  PS  case  no. 57/89 Dt: 15.03.89

307/302/34 IPC & 3/4 Explosive Act

8 Muffasil PS case 91/89 307/34 IPC & 27 Arms Act 9 Mairwa (Jiradei)  PS case no.

137/89 dt: 21.11.89 147/148/149/307/348/302/34  IPC  & 3/4 Explosive Act

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10 Siwan  Town  PS  Case  no. 108/94 /Dt: 22.05.94

147/148/149/324/307 IPC & 27 Arms Act

11 Pachurkhi  PS  case  no. 60/945 Dt 13.01.94

147/323/427/379 IPC

12 Siwan  Town  PS  case  no. 155/94 Dt: 08.08.94

302/307/324/  120  (B)/  34  IPC  &  27 Arms Act

13 Pachrukhi PS case no. 07/95 Dt; 20.01.95

143/144/427/435 IPC

14 Pachrukhi PS case 08/95 Dt; 20.01.95

302/34 IPC

15 Siwan  Town  PS  caseno. 11/96 Dt: 18.01.96

341/342/323/307/34  IPC  &  27  Arms Act

16 Hussainganj  PS  case  no. 99/96 Dt. 02.05.96

147/148/149/324/307/302  IPC  &  27 Arms Act

17 Andar PS case no. 32/96 Dt. 02.05.96

147/148/149/324/307/302  IPC  &  27 Arms Act

18 Andar PS case no. 36/96 Dt. 02.05.96

147/148/149/307 IPC

19 Siwan  Town  PS  case  no. 205/90 dt: 03.09.90

365/387 IPC

20 Muffasil PS case no. 52/88 147/148/324/323/307/379/IPC

PENDING CASES

S. No FIR P.S. Case No/ Dated Under Section 1 Hussainganj ; 43/05; 24.04.05 25 (I-B) 25 Arms Act 2 Siwan Town ; 99/05; 22.04.05 420/467/468 IPC 3 Muffasil PS; 97/07; 02.05.07 353/506 IPC 4 Hussainganj  PS  134/06;

13.10.05 392/411 IPC

5 Muffasil PS; 96/07; 02.05.07 353/506 IPC 6 Hussainganj  PS;  39/05;

24.04.05 25 (I-B) a/26 Arms Act, 120 B

7 Muffasil PS; 289/10; 22.07.10 414/353 IPC 8 Andarps ; 41/99; 05.07.99 14/248/149/341/324  IPC  &  27  Arms

Act 9 C-2; 54/05; 25.04.05 9/44/46/48/49/49(B)/50/51 10 Hussaingani; 114/05; 26.08.05 25(1-b)  A/25  Arms  Act  (1-B)  (H)  25(4)

26(1)35 Arms Act 11 Siwan Town; 11/01; 18.01.01 147/148/186/353/452/506 IPC 12 Hussainganj  PS;  48/05;

24.04.05

379 IPC & 39/44 Electricity Act

13 C-2; 27/09; 16.03.09 52 Prisoner Act 1984

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14 Siwan Rail PS; 33/97; 02.09.97 147/148/149/341/323/353/ 504 IPC @

27 Arms Act 15 Muffasil PS; 131/06; 17.06.06 189/353/506 IPC 16 Muffasil PS; 225/11; 12.07.11 353/504/506/34 IPC 17 Siwan Town; 229/05; 25.10.05 341/302/307/34 IPC 18 Muffasil PS; 333/11; 0510.11 188  IPC  &  52  Prisoner  Act  1894  u/s

420/468/471 IPC 19 Muffasil PS; 56/07; 20.03.07 147/149/341/342/323/307/337 IPC 20 Andar PS; 10/98; 29.01.98 147/148/149/341/506 IPC & 27 Arms

Act 21 Town PS; 220/14; 17.06.14 302/34/120 B IPC & 27 Arms Act 22 C-2; 62/07; 03.08.07 52 Prisoner Act 1894 23 C-2; 67/08; 01.09.08 52 Prisoner Act 1894 24 Muffasil PS; 226/13; 01.06.13 188 IPC & 52 Prisoner Act 1894 25 Muffasil PS; 182/08; 02.08.08 341/504/353/34 IPC 26 Hussainganj  PS;  34/01;

17.03.01 454/380 IPC

27 Siwan  Town  PS;  33/01; 17.03.01

147/148/149/307/353/323/333/379/ 380/447/452/427/435/120  –b  IPC  & 27 Arms Act

28 Muffasil PS; 08/01; 13.01.01 364 IPC 29 Barhariyaps ; 82/04; 08.08.04 302/120-B, 363 IPC & 27 Arms Act 30 Hussainganj PS 302/120-B  31 Muffasil PS; 150/09; 24.06.09 307 IPC 32 Siwan Town; 20/02; 05.03.02 302/ 120 (NB)/34 IPC 33  Siwan Town; 23/05; 10.02.05 147/148/149/341/379/364 IPC 34 Siwan  Town  ;  102/98;

13.07.98

302/34 IPC & 27 Arms Act

35 Muffasil PS; 32/01; 15.03.01 307/149 IPC & @7 Arms Act 36 Siwan Town; 145/98; 09.09.98 147/148/149/307/323/341/353/379/

504 IPC & 27 Arms Act 37 Siwan Town; 147/98; 09.09.98 307/139 IPC & 27 Arms Act 38 Hussasinganj  PS;  31/01;

17.03.01

25(1-B)A/26 Arms Act & 3/4 Explosive Act   &  147/148/149/324/307/302/ 353/332/333/335/120-B IPC

39 Hussainganj  PS;  32/01;

17.03.01

147/148/120-B/435/149/333/353/ 307 IPC & 27 Arms Act

40 Hussainganj  PS;  33/01;

17.03.01

25(1-A)/26/27/35  Arms  Act  &  3/5 Explosive Act

41 Siwan Town; 69/06; 13.03.06 383/34 IPC 42 Siwan Town; 54/97; 31.03.97 302/307/120-B/34 IPC & 27 Arms Act 43 Mirgabj  (Gopalganj)  PS;

119/91; 31.05.91

302/34 IPC & 27 Arms Act

44 Jugsalai  (Jamsedpur)  PS;

182/05

176/177/179/419/420/468/201/120- B IPC

45 KMP (Muzaffarpur); 182/05 176/177/179/419/420/468/201/120- B IPC”

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Be it noted, in certain cases trial has been stayed by

the High Court and in certain cases bail has been granted.   

16. On a perusal of the aforesaid chart, it is clear as noon

day that 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 10 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, including 9

for murder and 4 for attempt 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  a

history-sheeter Type ‘A’ (who is beyond 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 of Bihar.  It is contended by him that the said

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respondent has been a Member of 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 first casualty and, therefore,

this  Court,  as  the  protector  of  the  constitutional  rights,

should  direct  transfer  of  the  third  respondent  to  a  jail

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

refer  to  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 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 from the State of Bihar to a prison

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outside the State there must exist a law on the statute book

which permits such transfer.  In the absence of any law, it

is  not  permissible  in  law to  issue any direction for  such

transfer.  According to Mr. Naphade, by transfer to a prison

outside  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 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

142 of the 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 justice, but it cannot assume a

legislative  character,  for  legislation  is  absolutely  different

than adjudication. It is his further submission that Article

142  does  not  empower  this  Court  to  enact  law  and

transferring the third respondent from Bihar to any other

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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 right under Article 21 of the

Constitution  and  such  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 for the petitioners, it is astutely expounded

by  Mr.  Naphade  that  the  argument  is  fundamentally

founded on equity which is given the colour of justice 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 cannot be scuttled or

corroded at the instance of the petitioners.  Learned senior

counsel would urge that in a case of the present nature, the

question  of  balancing  of  rights  does  not  arise,  for  the

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principle  of  balancing  of  rights  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.

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 of the 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 to bring the said legislation.  The

Statement of Objects and Reasons of the 1950 Act states as

follows:-

“Section 29 of the Prisoners Act, 1900, inter alia, provided for the inter-State transfer of prisoners between the States in Parts A, C and D of  the First Schedule to the Constitution.  There was no provision,  however,  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 where the removal for the transfer of prisoners from Parts A, C and D States to Part B States and vice versa may be considered administratively desirable or necessary”

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21. Section 3 of the 1950 Act reads as follows:-

“3. Removal of prisoners from one State to another:- (1) Where any person is confined in a prison in a State.- (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 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.

(2) The officer in charge of the prison to which any person  is  removed  under  sub-section(1)  shall receive and detain him, so far as may be, according to the exigency of any writ, warrant or order of the court by which such person has been committed, or until such person is discharged or removed in due course of law.”

22. 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 from the prison in Bihar to any

other prison situate in another State.  It is also necessary to

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be addressed, whether the transfer would vitiate the basic

tenet of  Article 21 of the Constitution and should such a

right be allowed to founder.  In this regard, we have been

commended to  Sunil Batra (II) v. Delhi Administration2

and State of Maharashtra & ors v. Saeed Sohail Sheikh

and Ors.3.  

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 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  Sunil  Batra v.  Delhi  Administration &

Ors.4 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

the hidden cell.  The Court discussing about the perspective

in  the  context  of  the  prisoners  right  and  the  torture,

reproduced a passage from Sir Winston Churchill that was

2  (1980) 3 SCC 488 3  (2012) 13 SCC 192 4  (1978) 4 SCC 494

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referred to in Sunil Batra (supra).  The said passage reads

thus:-

“The mood and temper of the public in regard to the treatment of crime and criminals 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  to 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  every  man.  These  are  the symbols,  which,  in  the  treatment  of  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  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:-

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“40.  Prisoners  are  peculiarly  and  doubly handicapped.  For  one  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 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 Singh5 and Maneka Gandhi6 bears excerption:

“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 arm 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 the outer world.”

Therefore,  inside prisons are persons and their personhood,  if  crippled  by  law-keepers  turning law-breakers,  shall  be  forbidden by  the  writ  of this Court from such wrongdoing. Fair procedure, in  dealing  with  prisoners,  therefore,  calls  for another  dimension  of  access  to  law-provision, within easy reach, of the law which limits liberty to persons who are prevented from moving out of prison gates.”

5  Kharak Singh  v. State of U.P. AIR 1963 SC 1295 6  (1978) 1 SCC 248

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25. The learned Judges affirmed the position, as had been

held by Chandrachud, J., (as His Lordship then was) in D.

Bhuvan Mohan Patnaik & Ors v. State of A.P. & Ors7:-

“Convicts  are  not,  by  mere  reason  of  the conviction, denuded of all the fundamental rights which  they  otherwise  possess.  A  compulsion under  the  authority  of  law,  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 freely throughout the territory of  India or the right to ‘practise’ a profession. A man of profession would thus stand stripped of his right to hold consultations while serving  out  his  sentence.  But  the  Constitution 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  according  to procedure established by law.”

26. Eventually, they laid down:-

“48.  Inflictions  may  take  many  protean  forms, apart  from  physical  assaults.  Pushing  the prisoner into a solitary cell, denial of a necessary amenity, and, more dreadful sometimes, transfer to  a  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 abridgment is an infraction of liberty or life in its wider sense and cannot be sustained unless Article 21 is satisfied. There must be a corrective legal procedure, fair

7  (1975) 3 SCC 185

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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 violates natural justice. The string of guidelines in Batra1 set out in the first judgment, which we adopt, 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 norms  and  institutional  provisions  for  that purpose.”

27. Considerable  emphasis  was  laid  on  the  aspect  that

transfer to a distant prison where visits or society of friends

or relations is snapped, is an affliction or abridgment and

the same is an infraction of liberty 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 Sohail Sheik

(supra).  In the said case, the Court referred to Section 29 of

the 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  undertrial  is  permissible,  is  also  of  no 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 prisoner  who  is  confined  in  circumstances mentioned in sub-section (1) of Section 29. That is  evident  from the use of  words “any prisoner

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confined as aforesaid in a prison”. The expression leaves no manner of doubt that a transfer under sub-section  (2)  is  also  permissible  only  if  it relates  to  prisoners  who  were  confined  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 Act, 1894 and Sections 167 and 309 of the CrPC

and  adverted  to  the  nature  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 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 matter 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 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.”

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

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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. 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 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 of right to life require to be appositely

understood and appreciated. The first plank of submission

in this regard that has been structured with phenomenal

perceptiveness is  that  an order  transferring a prisoner,  a

convict  or  under  trial  to  a  distance  prison  is  absolutely

unacceptable  and,  if  such  an  order  is  passed,  it  would

clearly violate the fundamental right of the accused which

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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.  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 the jail and reflected on prison reforms.   It is

worthy to note that that  the Court has really  stated that

transfer in certain cases may be punitive in effect and such

actions may tantamount to affliction on liberty 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  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

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dealing  with  transfer  of  a  prisoner  and  focused  on  the

nature of power exercised by the Court. Reference to Sunil

Batra  (II) (supra)  was  made  to  bolster  that  an  order  of

transfer from one prison to another is not a ministerial act.

Thus,  the  said  authority  is  not  a  precedent  for  the

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  Article  21,  it  is  imperative,  has to be

tested on the  bedrock of  fair  trial.   The question that  is

required  to  be  posed  is  if  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 Siwan 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

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

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justification to accept such a prayer at  the behest  of  the

petitioners.  In oppugnation, the conception of fair trial in

criminal jurisprudence is not one way traffic, but includes

the accused and the victim 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  suffered

deserves to be dealt  with as per the law of the land and

should not  remain a mirage and 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.   

33. In J. Jayalalithaa & Ors v. State of Karnataka &

Ors.8,  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 accused in the spirit of the right to life 8 (2014) 2 SCC 401

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and personal liberty and the accused must get a free and

fair, just and reasonable trial on the charge imputed in a

criminal case. It has been further observed that any breach

or violation of public rights and duties adversely affects the

community  as  a  whole  and  it  becomes  harmful  to  the

society in general and, therefore, in all circumstances, the

courts  have  a  duty  to  maintain  public  confidence  in  the

administration of justice 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 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  technicalities  and  must  be

conducted under such rules as will protect the innocent and

punish  the  guilty.  Justice  should  not  only  be  done  but

should be seen to have been done. Therefore, free and fair

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trial is a sine qua non of Article 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 14 of the Constitution.  Elevating

the right of fair trial, the Court observed:-

“Article 12 of the Universal Declaration of Human Rights provides for the right to a fair trial what is enshrined  in  Article  21  of  our  Constitution. Therefore,  fair  trial  is  the  heart  of  criminal jurisprudence and, in a way, an important facet of a democratic polity and is governed by the rule of law. Denial of fair trial is crucifixion of human rights. [Vide Triveniben v. State of Gujarat9, Abdul Rehman Antulay v. R.S. Nayak10, Raj Deo Sharma (2) v. State of Bihar11, Dwarka Prasad Agarwal v. B.D. Agarwal12, K. Anbazhagan v. Supt. of Police13, Zahira Habibullah Sheikh (5) v. State of Gujarat14, Noor Aga v. State of Punjab15, Amarinder Singh v. Parkash  Singh  Badal16,  Mohd.  Hussain  v.  State (Govt. of NCT of Delhi)17,  Sudevanand v.  State18, Rattiram v. State of M.P.19 and Natasha Singh v. CBI20.]”

34. In this regard,  we may sit  in the time machine and

refer to a three-Judge Bench judgment in Maneka Sanjay

9 (1989) 1 SCC 678  10  (1992) 1 SCC 225 11 (1999) 7 SCC 604 12 (2003) 6 SCC 230  13 (2004) 3 SCC 767 14 (2006) 3 SCC 374 15 (2008) 16 SCC 417 16 (2009) 6 SCC 260 17 (2012) 2 SCC 584 18 (2012) 3 SCC 387 19 (2012) 4  SCC 516 20 (2013) 5 SCC 741

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Gandhi & another v. Rani Jethmalani21, wherein it has

been  observed  that  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.  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

accused cannot dictate where the case against him 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:-  

“39. … Fundamentally, a fair and impartial trial has a sacrosanct purpose. It has a demonstrable object that the accused should not be prejudiced. A fair trial is required to be conducted in such a manner which  would  totally  ostracise  injustice,  prejudice, dishonesty and favouritism.”

21 (1979) 4 SCC 167

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 In the said case, it has further been held that:-

“60. While delineating on the facets of speedy 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  Singh22 wherein it has been observed thus:

‘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 mistake 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 than the accused. There is, therefore, no reason to give all the benefits on account of the delay in trial to  the  accused  and  to  completely  deny  all justice to the victim of the offence.’

61. It is worth noting that the Constitution Bench in Iqbal Singh Marwah v. Meenakshi Marwah23 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.

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 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

22 (2009) 17 SCC 303 23 (2005) 4 SCC 370

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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  court  to  see  that  the  victim’s  right  is protected.  A  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 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  state  of  pink  of  perfection  in  procedure.  An

absolute apple-pie order in carrying out the adjective law,

would only be sound and fury signifying nothing.”

37. In Manu Sharma v. State (NCT of Delhi)24, the Court,

emphasizing on the concept of fair trial, observed thus:-  

“197.  In  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 dignity for human life at a much higher pedestal. In our jurisprudence an accused is  presumed to be innocent  till  proved  guilty,  the  alleged  accused  is

24 (2010) 6 SCC 1

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entitled to fairness and true 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 compliance with the basic rule of law. 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 of India.”

 38. A three-Judge Bench in Mohd. Hussain @ Julfikar

Ali  v.  The  State  (Govt.  of  NCT)  Delhi25 approvingly

reproduced  para  33  of  the  earlier  judgment  in  Zahira

Habibulla  H.  Sheikh  v.  State  of  Gujarat26 (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 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 needs and even so many powerful balancing factors which may come in the way of administration of criminal justice system.”

 39. In  Zahira  Habibulla H. Sheikh (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

25 (2012) 9 SCC 408 26 (2004) 4 SCC 158

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which may lead to the discovery of  the 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  convict  the  guilty  and protect the innocent, the trial should be a search for the  truth  and  not  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 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 prosecution violates even minimum standards of due process of law. It is inherent in the concept of  due process of  law, that condemnation should be rendered only after the trial in which the hearing is a real one, not sham 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. The fair trial for a criminal offence consists not only in technical observance of the frame and forms of law, 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  @  Julfikar  Ali (supra)  the

three-Judge  Bench  has  drawn  a  distinction  between  the

speedy trial and fair trial by opining that there is, however,

qualitative difference between the right to speedy trial and

the accused’s right of fair trial. Unlike the accused’s right of

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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 its very nature relative. It depends upon

diverse circumstances. Each 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 of prosecution 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-à-vis  the  impact  of  the  crime on

society and the confidence of the people in judicial system.

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  accused  to

speedy trial and if the balance tilts in favour of the former

the  long  delay  in  conclusion  of  criminal  trial  should  not

operate against the continuation of prosecution and if the

right of the accused in the facts and circumstances of the

case  and  exigencies  of  situation  tilts  the  balance  in  his

favour, the prosecution may be brought to an end.   

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41. We  have  referred  to  the  said  authority  as  the

three-Judge Bench has categorically stated that interests of

the  society  at  large  cannot  be  disregarded  or  totally

ostracized while applying the test of fair trial.

42. In  Bablu Kumar and Ors.  v.  State of  Bihar and

Anr.27  the 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

community  interest  by  conducting  themselves  in  such  a

manner  as  a  consequence  of  which  the  trial  becomes  a

mock trial.  The Court further ruled that a criminal trial is a

serious  concern  of  society  and  every  member  of  the

collective  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 the duty of the court.

27 (2015) 8 SCC 787

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43. Recently,  in  State of Haryana v. Ram Mehar and

Ors.28,  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.  It is a concrete phenomenon;

it is not rigid and there cannot be any straitjacket 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.   The Court  ruled that  neither  the accused nor  the

prosecution nor the victim which is a part of the society can

claim  absolute  predominance  over  the  other,  for  once

absolute 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  which  may  command

compartmentalisation  but  it  cannot  be  stated  to  be  an

inflexible  rule.  Each  and  every  irregularity  cannot  be 28 (2016) 8 SCC 762

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imported to the arena of fair trial. There may be situations

where injustice to the victim may play a pivotal role. The

centripodal purpose is to see that injustice is avoided when

the trial  is  conducted.  Simultaneously  the concept of  fair

trial  cannot  be  allowed  to  such  an  extent  so  that  the

systemic  order  of  conducting  a  trial  in  accordance  with

CrPC or other enactments get mortgaged to the whims and

fancies of the defence or the prosecution. The command of

the Code cannot be thrown to the winds. In such 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 fertile 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 established

principles.   The process of the court cannot be abused in

the name of fair trial at the drop of a hat, as that would lead

to miscarriage of justice.   

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44. On a  studied analysis of the concept of fair trial as a

facet  of  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.  They  may  not  be  entitled  to

compensation as conceived 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.

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

Siwan to any other jail outside the State of Bihar, his right

to  fair  trial  would  be  smothered  and  there  will  be  an

inscription of an obituary of fair trial and refutation of the

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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 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 they, in total haplessness, shall be

bound to succumb to the feeling of accentuated fear that is

created  by  his  unseen  tentacles,  is  not  an  artifice  and

cannot be ignored. In such a situation, this 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  we  ignore  the

assertion that if  the respondent No. 3 is not shifted from

Siwan Jail and the trial is held at Siwan, justice, which is

necessitous to be done in accordance with law, will suffer an

unprecedented set back and the petitioners would remain in

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a constant 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  of

rights.  In Sakal Paper (P) Ltd. & Ors v. Union of India &

another29,  the Court in the context  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  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  placing  an  otherwise  permissible restriction on another freedom.”

47. In  Subramanian  Swamy  v.  Union  of  India30 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)

29  AIR 1962 SC 305 30  (2016) 7 SCC 221

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and  the  other,  under  Article  21.  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 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  right  by others  and  also  with  reasonable  and  valid exercise 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 balance  between  competing  claims  of  different interests. In DTC v. Mazdoor Congress32 the Court has  ruled  that  articles  relating  to  fundamental rights are all parts of an integrated scheme in the Constitution  and  their  waters  must  mix  to constitute  that  grand  flow  of  unimpeded  and impartial  justice;  social,  economic and political, and of equality of status and opportunity which imply  absence  of  unreasonable  or  unfair discrimination between individuals or groups or classes.”

48. In  this  context,  it  is  also  appropriate  to  refer  to

certain other decisions where the Court has dealt with

the  concept  of  competing  rights.   We  are  disposed  to

think  that  dictum  laid  therein  has  to  be  appositely

appreciated.  In Mr. ‘X’ v. Hospital ‘Z’33, the issue arose

with regard to right to privacy as implicit in the right to

31  (1975) 1 SCC 11 32  1991 Supp (1) SCC 600 33  (1998) 8 SCC 296

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life and liberty as guaranteed 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 Court

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.  The Court further held that where there

is  a  clash  of  two  fundamental  rights,  namely,  the

appellant’s right to privacy as part of right 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 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  courtroom,  but  have  to  be

sensitive.  

49. The  aforesaid  decision  is  an  authority  for  the

proposition  that  there  can  be  a  conflict  between  two

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individuals  qua  their  right  under  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 larger public interest and further that would, in certain

circumstances, advance public morality of the day.  To

put  it  differently,  the  “greater  community  interest”  or

“interest of  the collective or  social  order” would be the

principle to 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.34 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 Dharma

Swatantraya Adhiniyam, 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 34   (1977)  1 SCC 677

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justification for the argument that Sections 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 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 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:-

“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

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that  Article  25(1)  guarantees  “freedom  of conscience”  to  every  citizen,  and not  merely  to the followers of one particular religion, and that, in turn postulates that there is no fundamental right  to  convert  another  person  to  one’s  own religion because if a person purposely undertakes the conversion 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:-

“It  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 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 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

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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 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 of a fundamental right”.

53. Be  it  stated,  circumstances  may  emerge  that  may

necessitate for 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. To elaborate, as in this case, the

accused has a fundamental right to have a fair trial under

Article 21 of the Constitution.  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.  It  has  to  be  remembered  that  no

fundamental right is absolute and it can have limitations in

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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 in

this  case,  the test  that  is  required to  be 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 “class honour”, as has been stated

in Vikas Yadav  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  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 35  (2016) 9 SCC 541

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their right should 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  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 “Rule of Law”.  It may be clarified at once that the

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 subserve the larger

public interest and serve the majesty of rule of law.  In this

regard, we are reminded of an ancient saying:-  

“yadapi siddham, loka 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 have general application, but the purpose of

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referring 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  borne  in  mind  that  total

extinction is not balancing.  When balancing act is done, the

right to fair trial is not totally crippled, but 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  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  of  justice  and  remains  closer  to

constitutional 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  CrPC.   He  cannot  go  on  filing  applications

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under various provisions of CrPC, whether tenable or not,

and put forth a plea on each and every occasion on the

bedrock that principle of fair trial sanctions it.  In such a

situation, as has been held by this Court, the prosecution

which represents the cause of collective and the victim, who

fights for remedy 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 context of fair trial, it has to be resolved regard being

had to the obtaining fact situation.  An accused 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  countenanced  as  it  is  an  unconscionable

situation.  Such  a  hazard  is  not  to  be  silently  suffered

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

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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 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 authority of law 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 of M.P. & another v. Thakur Bharat Singh36.  It

reads as follows:-

“All  executive  action  which  operates  to  the prejudice of any person must have the authority of law to support it, and the terms of Article 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 the  provisions  contained  in  Part  III  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 of lawful authority, which if the provisions of Article 19 were operative would have been invalid.”  

36  AIR 1967 SC 1170

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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 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  Rights,  West

Bengal & Ors37.  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 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 37  (2010) 3 SCC 571

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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 ones:-

“(i) The fundamental rights, enshrined in Part III of the Constitution, are inherent and cannot be extinguished  by  any  constitutional  or  statutory 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.

(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 of a citizen providing 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 conferred on this Court under Article 32 and on the High Courts under Article 226 of the  Constitution  the  power  of  judicial  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

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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  III  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 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  necessary to  show any  transgression  by  each  entity.  Therefore,  to borrow the words of Lord Steyn, judicial review is justified  by  combination  of  “the  principles  of separation of powers, rule of law, the principle of constitutionality and the reach of judicial 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 Constitution and provide remedy under Articles 32  and  226,  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.

(v) Restriction on Parliament by the Constitution and  restriction  on  the  executive  by  Parliament under  an  enactment,  do  not  amount  to restriction on the power of  the Judiciary under Articles 32 and 226 of the Constitution.”

And  eventually,  the  Court  answered  the  reference

thus:-

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“In 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 within the territory of a State without the  consent  of  that  State  will  neither  impinge upon 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, zealously and vigilantly.”

58. The  aforesaid  decision  compels  us  to  repel  the

submission of Mr. Naphade on this score which is to the

effect that 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

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 despite the prohibition contained in

the  Special  Police  Act.   Therefore,  the  non-conferment  of

power  under  the  1950  Act  would  not  prohibit  the  High

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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 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  statute.  He  has  drawn  our  attention  to  the

Constitution  Bench  decision  in  Prem  Chand  Garg  &

another v. Excise Commr.38  In the said case, the majority

ruled that:-

“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 of justice. 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 III of the Constitution.  An  order  which  this  Court  can make in order to do complete justice between the parties,  must  not  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.  Therefore,  we  do  not  think  it would  be  possible  to  hold  that  Article  142(1)

38  AIR 1963 SC 996

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confers  upon  this  Court  powers  which  can contravene the provisions of Article 32.”

60. Placing  reliance  on  A.R.  Antulay v.  R.S.  Nayak &

another39, Mr. Naphade would urge that the court cannot

pass an order in exercise of jurisdiction under Article 142 of

the Constitution which will affect the fundamental right of a

person.  In  Antulay’s  case, the five-Judge Bench in  R.S.

Nayak v.  A.R.  Antulay40,  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 rendered by seven Judges, the Court

had ignored the mandatory provision of Section 7(2) of the

Criminal  Law  Amendment  Act,  1952  and,  therefore,  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 Lordship

then was) ruled:-

39  (1988) 2 SCC 602 40  (1984) 2 SCC 183

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“The fact that the rule was discretionary did not alter  the  position.  Though  Article  142(1) empowers the Supreme Court to pass any order to do complete  justice  between the parties,  the court 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., speaking for the majority of the judges of this Court said that Article 142(1) did  not  confer  any  power  on  this  Court  to contravene  the  provisions  of  Article  32  of  the Constitution.  Nor  did  Article  145  confer  power upon this 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 interests of justice”. 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 III 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  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 Article 32.”

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 trial commands that an accused has to

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be tried fairly and should not be removed to a distant place

where he would feel isolated and cut-off from his 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

petitioners has drawn our attention to a Constitution Bench

judgment  in  Union  Carbide  Corporation (supra).  In

paragraph  83,  M.N.  Venkatachaliah,  J,  (as  His  Lordship

then was) speaking for the majority, opined thus:-

“It  is  necessary  to  set  at  rest  certain misconceptions  in  the  arguments  touching  the scope of the powers of this Court under Article 142(1)  of  the  Constitution.  These  issues  are matters  of  serious  public  importance.  The proposition that a provision in any ordinary law irrespective 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 both Garg as well as Antulay 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

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breach  of  constitutional  rights.  We  agree  with Shri Nariman that the power of the Court under Article  142  insofar  as  quashing  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, 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 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  limitation  on  the  powers under  Article  142  arising  from  “inconsistency with express statutory provisions of substantive law”  must  really  mean  and  be  understood  as some  express  prohibition  contained  in  any substantive  statutory  law.  He  suggested that  if the  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  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 142 and in assessing the needs of “complete justice” of a cause or matter, the apex Court will take note of the express prohibitions in

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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 not ‘complete justice’  of a cause or matter and in the ultimate analysis of the  propriety  of  the  exercise  of  the  power.  No question of lack of jurisdiction or of nullity can arise”.      [Emphasis supplied]

62. It is urged by Mr. Naphade that the said judgment is

per incuriam as it runs counter to what has been stated in

Antulay (supra).  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 of justice.  

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

Constitution  are  inherent  in  the  Court  and  are 41 (1998) 4 SCC 409

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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 independent basis of

jurisdiction  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

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 administering justice according to law. Thereafter, the

Court held:-

“There  is  no  doubt  that  it  is  an  indispensable adjunct  to  all  other  powers  and  is  free  from the restraint of jurisdiction and operates as a valuable weapon  in  the  hands  of  the  Court  to  prevent “clogging or obstruction of the stream of justice”. It, however, needs to be remembered that the powers

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conferred on the Court by Article 142 being curative in  nature  cannot  be  construed  as  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 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 &

ors42,  Re,  Vinay Chandra Mishra43,  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. 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 those cases that substantive statutory provisions dealing expressly  with the subject  can be  ignored by this Court while exercising powers under Article 142.

42 (1991) 4 SCC 406 43 (1995) 2 SCC 584 44 1994 Supp. (1) SCC 145

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56. As a matter of fact,  the observations on which emphasis  has  been  placed  by  us  from the    Union Carbide case  ,    A.R. Antulay 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  . It is one thing to say that “prohibitions or limitations in a statute” cannot come in the way of  exercise of  jurisdiction 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 exercising jurisdiction  under  Article  142,  this  Court  can altogether  ignore the  substantive  provisions  of  a statute,  dealing  with  the  subject  and pass  orders concerning  an  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 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 Champaklal Trivedi v. State

of Gujarat45. In the said case, question arose with regard to

reduction of sentence that had been imposed under Section

13(3) of the Prevention of Corruption Act, 1988. The Court

referred to the earlier decisions in Vishweshwaraiah Iron

&  Steel  Ltd.  v.  Abdul  Gani  &  Ors46,  Keshabhai

45 (2012) 7 SCC 80 46 (1997) 8 SCC 713

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Malabhai  Vankar  v.  State  of  Gujarat47,  Laxmidas

Morarji v. Behrose Darab Madan48 and held thus:-

“…  where  the  minimum sentence  is  provided,  we think it would not be at all appropriate to exercise jurisdiction under Article 142 of the Constitution of India 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  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  leniency.  In  fact,  reduction  of  the sentence would be adding 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.  

66. In this regard, we may also refer to the authority in

Shamsu Suhara Beevi v. G. Alex and another49.  In the

said case, the Court was dealing with a lis that pertained to

an agreement of sale. There was no prayer for amendment

of the plaint to include the relief of compensation for breach

47 1995 Supp. (3) SCC 704 48 (2009) 10 SCC 425 49 (2004) 8 SCC 569

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of  contract  in addition to  the specific  performance of  the

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 conclusion 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 that the High Court would not have

granted compensation under Section 21 in addition to the

relief  of  specific  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  specific

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 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  certain

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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.   

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 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) 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 to restrain the court from what is mandated

and required for a free and fair trial.  The statutory power is

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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 executive. Therefore, we are

unable  to  accept  the  submission  of  Mr.  Naphade  in  this

regard.  

69. Presently, we shall advert to the facts which we have

stated in the beginning.   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 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  occasions  and  elected  as  a  Member  of

Parliament four times.  This is not a normal and usual case.

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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 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  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 and anarchy to a society.  A  society  expects  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  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  Court  has  taken  into  consideration  the

paramountcy of  peaceful  social  order while cancelling the

50 (2014) 16 SCC 508

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order of bail, for the order granting bail was passed without

proper consideration of criminal antecedents of the accused

whose acts created a concavity in the social stream.  

70. Mr. Bhushan, learned senior counsel heavily relied on

the  authority  in  Kalyan  Chandra  Sarkar  v.  Rajesh

Ranjan alias Pappu Yadav and another51. It is urged by

him that  factual  matrix in the said case and the present

case is identical.  In the said case, the Court noticed that

the respondent therein, Rajesh Ranjan alias Pappu Yadav

while he was in judicial custody, was found addressing an

election  meeting.  The  Court  called  for  a  report  from the

authorities  concerned  requiring  them to  explain  on  what

authority  the  said  respondent  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  him  took  him  to

various places which the respondent wanted to visit beyond

the  scope of  the  production warrant.  It  had come to  the

knowledge  of  the  Court  that  though  his  bail  had  been

cancelled, the accused was never taken into jail and, in fact, 51 (2005) 3 SCC 284

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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  medical  treatment  at  Patna  Medical  College  and

permitted him to stay 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  unlawful  acts.   It  was  also  observed  that,  it  was

evident  from the  fact  that  some of  the  illegal  acts  of  the

respondent were committed even 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  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,

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

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Article  142  of  the  Constitution  may  issue  necessary

direction.  

71. The  two-Judge  Bench  referred  to  the  authorities  in

Supreme  Court  Bar  Association  (supra)  and  Union

Carbide Corporation (supra) and ruled thus:-  

“29.  Despite  some criticisms 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 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. & Ors52,  State of

W.B. & Ors v. Sampat Lal & Ors53 Ashok Kumar Gupta

&  another  v.  State  of  U.P.  &  Ors54  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 the Criminal Procedure Code but at the same time protect the administration of justice. Therefore, as  held  by  this  Court  in  the  case  of  State  of Maharashtra v.  Dr. Praful B. Desai55 and  Sakshi v.

52 (2000) 9 SCC 572 53 (1985) 1 SCC 317 54 (1997) 5 SCC 201 55 (2003) 4 SCC 601

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Union of India56 we think the above requirement of the  Code  could  be  met  by  directing  the  trial  by video-conferencing  facility.  In  our  opinion,  this  is one of those rare cases wherein 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 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 of justice to transfer the respondent out of the State of Bihar, we are required 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 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  of Tihar Jail to make such arrangements as he thinks are  necessary  to  prevent  the  reoccurrence  of  the activities of the respondent of the nature 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 if necessary be reported to  this  Court.  However,  the  respondent  shall  be entitled to the benefit  of  the visit  of his family as provided  for  under  the  Jail  Manual  of  Tihar.  He

56 (2004) 5 SCC 518

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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 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  of  Tihar  Jail  to produce  the  accused  before  him  for  that  limited purpose.  This,  however,  will  be  in  a  rare  and important 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 of Tihar Jail who shall bear  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.   

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.  

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74. In  view  of  the  aforesaid  analysis,  we  record  our

conclusions 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  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 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  must  soothe  the

ultimate justice which is sought individually, but is

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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 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 trial.   

(iv) The  weighing  of  balance  between  the  two

perspectives 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 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  the  citizens  conferred  under  the

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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.

(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 of fair trial, the Court is

not exercising any kind of jurisdiction in equity.

75. In view of the aforesaid conclusions, we direct the State

of Bihar to transfer the third respondent,  M. Shahabuddin,

from Siwan Jail, District Siwan to Tihar Jail, Delhi and hand

over the prisoner to the competent officer of Tihar Jail after

giving prior intimation for his transfer in Delhi.  Needless to

say, that the authorities escorting the third respondent from

Siwan  Jail  to  Tihar  Jail  would  strictly  follow  the  rules

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applicable 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 Tihar Jail and the

competent  authority  of  the  State  of  Bihar  shall  make  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

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 the same

before the learned Acting Chief Justice.

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77. In  view  of  the  aforesaid  analysis,  Writ  Petition

(Criminal)  No. 147 of 2016 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 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.  

........................................J.   [DIPAK MISRA]

........................................J.                    [AMITAVA ROY] NEW DELHI FEBRUARY 15, 2017

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