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. 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 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; 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 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.
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 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.
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 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
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
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.
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
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 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
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. |FIR P.S. |Under Section |Status of |Stat|Date of|Period |
|No |case No | |Trial |us |Grant |of |
| | | |conviction |of |of bail|Imprison|
| | | |(with |appe|by |ment |
| | | |sentence)/ |al |Distric|before |
| | | |Pending/Acqu| |t/High |grant of|
| | | |ittal (in | |Court |bail |
| | | |series) | | | |
|1 |Muffasil PS|147/341/342/448|2 Year |- |Bail |0 days |
| |Case No. |/504 IPC |imprisonment| |28.10.0| |
| |181/98 dt | |& 5000/- | |9 by HC| |
| |18.09.98 | |fine | |Patna | |
|2 |C-2 34/05 |506 IPC |1 year |- |Bail |3 yrs, 8|
| |Dt. | |imprisonment| |28.10.0|months, |
| |07.04.05 | |and Rs.1000 | |9 by |8 days |
| | | |fine | |Spl. | |
| | | | | |Court | |
|3 |Muffasil PS|363/365 IPC |3 year |- |Bail |0 Days |
| |case | |imprisonment| |11.03.1| |
| |61/90 Dt. | | | |1 | |
| |12.04.90 | | | |By Spl.| |
| | | | | |Court | |
| | | | | |Siwan | |
|4 |Hussainganj|364/34 IPC |Life & |- |Bail |3 yrs 3 |
| |ps case | |Rs.10,000/- | |21.10.9|mon |
| |No.14/99 | | | |9 by HC| |
| |dt. 07.2.99| | | |Patna | |
|5 |Darauli ps |307/353/34 IPC|10 years & | |Bail |2 yrs 1 |
| |C.No. 34/96| |Rs. 2000/- | |21.10.0|mon 21 |
| |dt: | | | |9 by HC|days |
| |04.05.96 | | | |Patna | |
|6 |Hussainganj|25I-B) A/26/35|3 Yrs |- |Bail |2 yrs 9 |
| |ps |Arms Act |imprisonment| |20.10.0|mon 10 |
| |Case | |& 5000/- | |9 by HC|days |
| |no.44/05 | |fine | |Patna | |
| |Dt. | | | | | |
| |24.04.05 | | | | | |
|7 |Hussainganj|414 IPC & 25 |5 years | |Bail |5 yrs 8 |
| |ps |(I-B)/26 Arms |imprisonment| |16.07.1|mon 9 |
| |Case no. |Act | | |1 |days |
| |42/05 | | | | | |
| |Dt:24.04.05| | | | | |
|8 |Muffasil ps|364/336/302/30|Life | |Bail |6 yrs 10|
| |Case no. |1 IPC |imprisonment| |14.07.1|months 5|
| |131/04 | | | |6 by HC|days |
| |Dt: | | | |Patna | |
| |16.08.04 | | | | | |
|9 |Hussainganj|411/414 IPC |3 yrs |- |Bail |3 yrs 11|
| |ps | |imprisonment| |28.10.0|months |
| |Case | | | |9 by HC|21 days |
| |no.41/05 | | | |Patna | |
| |Dt: | | | | | |
| |24.04.05 | | | | | |
|10 |Pachruhi ps|392/411 IPC |This case is| |-do- | |
| |Case no. | |merged in | | | |
| |102/04 | |Hussainganj | | | |
| |Dt. | |ps case no. | | | |
| |18.10.04 | |41/05 | | | |
ACQUITTED CASES
|Sl. No. |FIR P. S. Case No. |Under Section |
| |…/dated | |
|1 |Siwan Town PS |307/323/341/34 IPC & 27 Arms Act|
| |Case No. 217/85 | |
| |Dt. 02.09.85 | |
|2 |Siwan Town Case |394 IPC |
| |No.77/86 dt: 08.04.86 | |
|3 |Siwan Town PS case no. |399/402/411/412/414/216A IPC &25|
| |79/86 |A/26/35 Arms Act |
| |Dt. 10.04.86 | |
|4 |Muffasil PS case no. |147/148/149/325/302 IPC & 27 |
| |228/86 |Arms Act 3/5 Explosive Act |
|5 |Hussainganj PS case no. |363/34 IPC |
| |125/88, Dt. 12.09.88 | |
|6 |Siwan Town PS case no. |307 IPC & 27 Arms Act |
| |183/88 | |
| |Dt: 10.09.88 | |
|7 |Siwan Town PS case no. |307/302/34 IPC & 3/4 Explosive |
| |57/89 |Act |
| |Dt: 15.03.89 | |
|8 |Muffasil PS case 91/89 |307/34 IPC & 27 Arms Act |
|9 |Mairwa (Jiradei) PS case|147/148/149/307/348/302/34 IPC &|
| |no. 137/89 dt: 21.11.89 |3/4 Explosive Act |
|10 |Siwan Town PS Case no. |147/148/149/324/307 IPC & 27 |
| |108/94 |Arms Act |
| |/Dt: 22.05.94 | |
|11 |Pachurkhi PS case no. |147/323/427/379 IPC |
| |60/945 Dt 13.01.94 | |
|12 |Siwan Town PS case no. |302/307/324/ 120 (B)/ 34 IPC & |
| |155/94 Dt: 08.08.94 |27 Arms Act |
|13 |Pachrukhi PS case no. |143/144/427/435 IPC |
| |07/95 | |
| |Dt; 20.01.95 | |
|14 |Pachrukhi PS case 08/95 |302/34 IPC |
| |Dt; 20.01.95 | |
|15 |Siwan Town PS caseno. |341/342/323/307/34 IPC & 27 Arms|
| |11/96 Dt: 18.01.96 |Act |
|16 |Hussainganj PS case no. |147/148/149/324/307/302 IPC & 27|
| |99/96 Dt. 02.05.96 |Arms Act |
|17 |Andar PS case no. 32/96 |147/148/149/324/307/302 IPC & 27|
| |Dt. 02.05.96 |Arms Act |
|18 |Andar PS case no. 36/96 |147/148/149/307 IPC |
| |Dt. 02.05.96 | |
|19 |Siwan Town PS case no. |365/387 IPC |
| |205/90 dt: 03.09.90 | |
|20 |Muffasil PS case no. |147/148/324/323/307/379/IPC |
| |52/88 | |
PENDING CASES
|S. No |FIR P.S. Case No/ Dated |Under Section |
|1 |Hussainganj ; 43/05; |25 (I-B) 25 Arms Act |
| |24.04.05 | |
|2 |Siwan Town ; 99/05; |420/467/468 IPC |
| |22.04.05 | |
|3 |Muffasil PS; 97/07; |353/506 IPC |
| |02.05.07 | |
|4 |Hussainganj PS 134/06; |392/411 IPC |
| |13.10.05 | |
|5 |Muffasil PS; 96/07; |353/506 IPC |
| |02.05.07 | |
|6 |Hussainganj PS; 39/05; |25 (I-B) a/26 Arms Act, 120 B |
| |24.04.05 | |
|7 |Muffasil PS; 289/10; |414/353 IPC |
| |22.07.10 | |
|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; |25(1-b) A/25 Arms Act (1-B) (H) |
| |26.08.05 |25(4) 26(1)35 Arms Act |
|11 |Siwan Town; 11/01; |147/148/186/353/452/506 IPC |
| |18.01.01 | |
|12 |Hussainganj PS; 48/05; |379 IPC & 39/44 Electricity Act |
| |24.04.05 | |
|13 |C-2; 27/09; 16.03.09 |52 Prisoner Act 1984 |
|14 |Siwan Rail PS; 33/97; |147/148/149/341/323/353/ 504 IPC|
| |02.09.97 |@ 27 Arms Act |
|15 |Muffasil PS; 131/06; |189/353/506 IPC |
| |17.06.06 | |
|16 |Muffasil PS; 225/11; |353/504/506/34 IPC |
| |12.07.11 | |
|17 |Siwan Town; 229/05; |341/302/307/34 IPC |
| |25.10.05 | |
|18 |Muffasil PS; 333/11; |188 IPC & 52 Prisoner Act 1894 |
| |0510.11 |u/s 420/468/471 IPC |
|19 |Muffasil PS; 56/07; |147/149/341/342/323/307/337 IPC |
| |20.03.07 | |
|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; |188 IPC & 52 Prisoner Act 1894 |
| |01.06.13 | |
|25 |Muffasil PS; 182/08; |341/504/353/34 IPC |
| |02.08.08 | |
|26 |Hussainganj PS; 34/01; |454/380 IPC |
| |17.03.01 | |
|27 |Siwan Town PS; 33/01; |147/148/149/307/353/323/333/379/|
| |17.03.01 |380/447/452/427/435/120 –b IPC &|
| | |27 Arms Act |
|28 |Muffasil PS; 08/01; |364 IPC |
| |13.01.01 | |
|29 |Barhariyaps ; 82/04; |302/120-B, 363 IPC & 27 Arms Act|
| |08.08.04 | |
|30 |Hussainganj PS |302/120-B |
|31 |Muffasil PS; 150/09; |307 IPC |
| |24.06.09 | |
|32 |Siwan Town; 20/02; |302/ 120 (NB)/34 IPC |
| |05.03.02 | |
|33 | Siwan Town; 23/05; |147/148/149/341/379/364 IPC |
| |10.02.05 | |
|34 |Siwan Town ; 102/98; |302/34 IPC & 27 Arms Act |
| |13.07.98 | |
|35 |Muffasil PS; 32/01; |307/149 IPC & @7 Arms Act |
| |15.03.01 | |
|36 |Siwan Town; 145/98; |147/148/149/307/323/341/353/379/|
| |09.09.98 |504 IPC & 27 Arms Act |
|37 |Siwan Town; 147/98; |307/139 IPC & 27 Arms Act |
| |09.09.98 | |
|38 |Hussasinganj PS; 31/01; |25(1-B)A/26 Arms Act & 3/4 |
| |17.03.01 |Explosive Act & |
| | |147/148/149/324/307/302/ |
| | |353/332/333/335/120-B IPC |
|39 |Hussainganj PS; 32/01; |147/148/120-B/435/149/333/353/ |
| |17.03.01 |307 IPC & 27 Arms Act |
|40 |Hussainganj PS; 33/01; |25(1-A)/26/27/35 Arms Act & 3/5 |
| |17.03.01 |Explosive Act |
|41 |Siwan Town; 69/06; |383/34 IPC |
| |13.03.06 | |
|42 |Siwan Town; 54/97; |302/307/120-B/34 IPC & 27 Arms |
| |31.03.97 |Act |
|43 |Mirgabj (Gopalganj) PS; |302/34 IPC & 27 Arms Act |
| |119/91; 31.05.91 | |
|44 |Jugsalai (Jamsedpur) PS; |176/177/179/419/420/468/201/120-|
| |182/05 |B IPC |
|45 |KMP (Muzaffarpur); 182/05|176/177/179/419/420/468/201/120-|
| | |B IPC” |
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 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 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 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 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”
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 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
Administration[2] 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 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:-
“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 Singh[5] and Maneka Gandhi[6] 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.”
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. & Ors[7]:-
“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 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 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 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 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 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 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 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 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 Gujarat[9], Abdul Rehman Antulay v. R.S. Nayak[10], Raj Deo
Sharma (2) v. State of Bihar[11], Dwarka Prasad Agarwal v. B.D.
Agarwal[12], K. Anbazhagan v. Supt. of Police[13], Zahira Habibullah Sheikh
(5) v. State of Gujarat[14], Noor Aga v. State of Punjab[15], Amarinder
Singh v. Parkash Singh Badal[16], Mohd. Hussain v. State (Govt. of NCT of
Delhi)[17], Sudevanand v. State[18], Rattiram v. State of M.P.[19] and
Natasha Singh v. CBI[20].]”
34. In this regard, we may sit in the time machine and refer to a three-
Judge Bench judgment in Maneka Sanjay Gandhi & another v. Rani
Jethmalani[21], 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.”
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 Singh[22] 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 Marwah[23] 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
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 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) Delhi[25] approvingly reproduced para 33 of the earlier
judgment in Zahira Habibulla H. Sheikh v. State of Gujarat[26] (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 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 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.
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.
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
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.
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 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 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 & another[29], 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 India[30] 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) 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
Gujarat[31], 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
Congress[32] 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 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 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 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 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 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 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 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 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 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 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 Singh[36]. 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.”
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 & Ors[37]. 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 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 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:-
“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 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) confers upon this Court powers which can contravene the provisions
of Article 32.”
60. Placing reliance on A.R. Antulay v. R.S. Nayak & another[39], 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. Antulay[40], 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:-
“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 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 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 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 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
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 & ors[42], Re, Vinay Chandra
Mishra[43], 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 case[44] 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.
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 Gujarat[45]. 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 & Ors[46], Keshabhai Malabhai Vankar v. State of
Gujarat[47], Laxmidas Morarji v. Behrose Darab Madan[48] 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 another[49]. 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 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
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 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. 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 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
another[51]. 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, 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 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. & Ors[52], State of W.B. & Ors v. Sampat Lal &
Ors[53] Ashok Kumar Gupta & another v. State of U.P. & Ors[54] 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. Desai[55]
and Sakshi v. Union of India[56] 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 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.
74. In view of the aforesaid analysis, we record our conclusions and
directions in seriatim:-
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.
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 subservient and would not
prevail when fair trial requires transfer of the criminal proceedings.
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.
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.
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.
The Court in exercise of power under Article 142 of the Constitution cannot
curtail the fundamental rights of the citizens conferred under the
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.
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
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.
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
-----------------------
[1] (2016) 9 SCC 443
[2] (1980) 3 SCC 488
[3] (2012) 13 SCC 192
[4] (1978) 4 SCC 494
[5] Kharak Singh v. State of U.P. AIR 1963 SC 1295
[6] (1978) 1 SCC 248
[7] (1975) 3 SCC 185
[8] (2014) 2 SCC 401
[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
[21] (1979) 4 SCC 167
[22] (2009) 17 SCC 303
[23] (2005) 4 SCC 370
[24] (2010) 6 SCC 1
[25] (2012) 9 SCC 408
[26] (2004) 4 SCC 158
[27] (2015) 8 SCC 787
[28] (2016) 8 SCC 762
[29] AIR 1962 SC 305
[30] (2016) 7 SCC 221
[31] (1975) 1 SCC 11
[32] 1991 Supp (1) SCC 600
[33] (1998) 8 SCC 296
[34] (1977) 1 SCC 677
[35] (2016) 9 SCC 541
[36] AIR 1967 SC 1170
[37] (2010) 3 SCC 571
[38] AIR 1963 SC 996
[39] (1988) 2 SCC 602
[40] (1984) 2 SCC 183
[41] (1998) 4 SCC 409
[42] (1991) 4 SCC 406
[43] (1995) 2 SCC 584
[44] 1994 Supp. (1) SCC 145
[45] (2012) 7 SCC 80
[46] (1997) 8 SCC 713
[47] 1995 Supp. (3) SCC 704
[48] (2009) 10 SCC 425
[49] (2004) 8 SCC 569
[50] (2014) 16 SCC 508
[51] (2005) 3 SCC 284
[52] (2000) 9 SCC 572
[53] (1985) 1 SCC 317
[54] (1997) 5 SCC 201
[55] (2003) 4 SCC 601
[56] (2004) 5 SCC 518
-----------------------
38
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. 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 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; 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 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.
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 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.
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 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
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
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.
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
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 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
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. |FIR P.S. |Under Section |Status of |Stat|Date of|Period |
|No |case No | |Trial |us |Grant |of |
| | | |conviction |of |of bail|Imprison|
| | | |(with |appe|by |ment |
| | | |sentence)/ |al |Distric|before |
| | | |Pending/Acqu| |t/High |grant of|
| | | |ittal (in | |Court |bail |
| | | |series) | | | |
|1 |Muffasil PS|147/341/342/448|2 Year |- |Bail |0 days |
| |Case No. |/504 IPC |imprisonment| |28.10.0| |
| |181/98 dt | |& 5000/- | |9 by HC| |
| |18.09.98 | |fine | |Patna | |
|2 |C-2 34/05 |506 IPC |1 year |- |Bail |3 yrs, 8|
| |Dt. | |imprisonment| |28.10.0|months, |
| |07.04.05 | |and Rs.1000 | |9 by |8 days |
| | | |fine | |Spl. | |
| | | | | |Court | |
|3 |Muffasil PS|363/365 IPC |3 year |- |Bail |0 Days |
| |case | |imprisonment| |11.03.1| |
| |61/90 Dt. | | | |1 | |
| |12.04.90 | | | |By Spl.| |
| | | | | |Court | |
| | | | | |Siwan | |
|4 |Hussainganj|364/34 IPC |Life & |- |Bail |3 yrs 3 |
| |ps case | |Rs.10,000/- | |21.10.9|mon |
| |No.14/99 | | | |9 by HC| |
| |dt. 07.2.99| | | |Patna | |
|5 |Darauli ps |307/353/34 IPC|10 years & | |Bail |2 yrs 1 |
| |C.No. 34/96| |Rs. 2000/- | |21.10.0|mon 21 |
| |dt: | | | |9 by HC|days |
| |04.05.96 | | | |Patna | |
|6 |Hussainganj|25I-B) A/26/35|3 Yrs |- |Bail |2 yrs 9 |
| |ps |Arms Act |imprisonment| |20.10.0|mon 10 |
| |Case | |& 5000/- | |9 by HC|days |
| |no.44/05 | |fine | |Patna | |
| |Dt. | | | | | |
| |24.04.05 | | | | | |
|7 |Hussainganj|414 IPC & 25 |5 years | |Bail |5 yrs 8 |
| |ps |(I-B)/26 Arms |imprisonment| |16.07.1|mon 9 |
| |Case no. |Act | | |1 |days |
| |42/05 | | | | | |
| |Dt:24.04.05| | | | | |
|8 |Muffasil ps|364/336/302/30|Life | |Bail |6 yrs 10|
| |Case no. |1 IPC |imprisonment| |14.07.1|months 5|
| |131/04 | | | |6 by HC|days |
| |Dt: | | | |Patna | |
| |16.08.04 | | | | | |
|9 |Hussainganj|411/414 IPC |3 yrs |- |Bail |3 yrs 11|
| |ps | |imprisonment| |28.10.0|months |
| |Case | | | |9 by HC|21 days |
| |no.41/05 | | | |Patna | |
| |Dt: | | | | | |
| |24.04.05 | | | | | |
|10 |Pachruhi ps|392/411 IPC |This case is| |-do- | |
| |Case no. | |merged in | | | |
| |102/04 | |Hussainganj | | | |
| |Dt. | |ps case no. | | | |
| |18.10.04 | |41/05 | | | |
ACQUITTED CASES
|Sl. No. |FIR P. S. Case No. |Under Section |
| |…/dated | |
|1 |Siwan Town PS |307/323/341/34 IPC & 27 Arms Act|
| |Case No. 217/85 | |
| |Dt. 02.09.85 | |
|2 |Siwan Town Case |394 IPC |
| |No.77/86 dt: 08.04.86 | |
|3 |Siwan Town PS case no. |399/402/411/412/414/216A IPC &25|
| |79/86 |A/26/35 Arms Act |
| |Dt. 10.04.86 | |
|4 |Muffasil PS case no. |147/148/149/325/302 IPC & 27 |
| |228/86 |Arms Act 3/5 Explosive Act |
|5 |Hussainganj PS case no. |363/34 IPC |
| |125/88, Dt. 12.09.88 | |
|6 |Siwan Town PS case no. |307 IPC & 27 Arms Act |
| |183/88 | |
| |Dt: 10.09.88 | |
|7 |Siwan Town PS case no. |307/302/34 IPC & 3/4 Explosive |
| |57/89 |Act |
| |Dt: 15.03.89 | |
|8 |Muffasil PS case 91/89 |307/34 IPC & 27 Arms Act |
|9 |Mairwa (Jiradei) PS case|147/148/149/307/348/302/34 IPC &|
| |no. 137/89 dt: 21.11.89 |3/4 Explosive Act |
|10 |Siwan Town PS Case no. |147/148/149/324/307 IPC & 27 |
| |108/94 |Arms Act |
| |/Dt: 22.05.94 | |
|11 |Pachurkhi PS case no. |147/323/427/379 IPC |
| |60/945 Dt 13.01.94 | |
|12 |Siwan Town PS case no. |302/307/324/ 120 (B)/ 34 IPC & |
| |155/94 Dt: 08.08.94 |27 Arms Act |
|13 |Pachrukhi PS case no. |143/144/427/435 IPC |
| |07/95 | |
| |Dt; 20.01.95 | |
|14 |Pachrukhi PS case 08/95 |302/34 IPC |
| |Dt; 20.01.95 | |
|15 |Siwan Town PS caseno. |341/342/323/307/34 IPC & 27 Arms|
| |11/96 Dt: 18.01.96 |Act |
|16 |Hussainganj PS case no. |147/148/149/324/307/302 IPC & 27|
| |99/96 Dt. 02.05.96 |Arms Act |
|17 |Andar PS case no. 32/96 |147/148/149/324/307/302 IPC & 27|
| |Dt. 02.05.96 |Arms Act |
|18 |Andar PS case no. 36/96 |147/148/149/307 IPC |
| |Dt. 02.05.96 | |
|19 |Siwan Town PS case no. |365/387 IPC |
| |205/90 dt: 03.09.90 | |
|20 |Muffasil PS case no. |147/148/324/323/307/379/IPC |
| |52/88 | |
PENDING CASES
|S. No |FIR P.S. Case No/ Dated |Under Section |
|1 |Hussainganj ; 43/05; |25 (I-B) 25 Arms Act |
| |24.04.05 | |
|2 |Siwan Town ; 99/05; |420/467/468 IPC |
| |22.04.05 | |
|3 |Muffasil PS; 97/07; |353/506 IPC |
| |02.05.07 | |
|4 |Hussainganj PS 134/06; |392/411 IPC |
| |13.10.05 | |
|5 |Muffasil PS; 96/07; |353/506 IPC |
| |02.05.07 | |
|6 |Hussainganj PS; 39/05; |25 (I-B) a/26 Arms Act, 120 B |
| |24.04.05 | |
|7 |Muffasil PS; 289/10; |414/353 IPC |
| |22.07.10 | |
|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; |25(1-b) A/25 Arms Act (1-B) (H) |
| |26.08.05 |25(4) 26(1)35 Arms Act |
|11 |Siwan Town; 11/01; |147/148/186/353/452/506 IPC |
| |18.01.01 | |
|12 |Hussainganj PS; 48/05; |379 IPC & 39/44 Electricity Act |
| |24.04.05 | |
|13 |C-2; 27/09; 16.03.09 |52 Prisoner Act 1984 |
|14 |Siwan Rail PS; 33/97; |147/148/149/341/323/353/ 504 IPC|
| |02.09.97 |@ 27 Arms Act |
|15 |Muffasil PS; 131/06; |189/353/506 IPC |
| |17.06.06 | |
|16 |Muffasil PS; 225/11; |353/504/506/34 IPC |
| |12.07.11 | |
|17 |Siwan Town; 229/05; |341/302/307/34 IPC |
| |25.10.05 | |
|18 |Muffasil PS; 333/11; |188 IPC & 52 Prisoner Act 1894 |
| |0510.11 |u/s 420/468/471 IPC |
|19 |Muffasil PS; 56/07; |147/149/341/342/323/307/337 IPC |
| |20.03.07 | |
|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; |188 IPC & 52 Prisoner Act 1894 |
| |01.06.13 | |
|25 |Muffasil PS; 182/08; |341/504/353/34 IPC |
| |02.08.08 | |
|26 |Hussainganj PS; 34/01; |454/380 IPC |
| |17.03.01 | |
|27 |Siwan Town PS; 33/01; |147/148/149/307/353/323/333/379/|
| |17.03.01 |380/447/452/427/435/120 –b IPC &|
| | |27 Arms Act |
|28 |Muffasil PS; 08/01; |364 IPC |
| |13.01.01 | |
|29 |Barhariyaps ; 82/04; |302/120-B, 363 IPC & 27 Arms Act|
| |08.08.04 | |
|30 |Hussainganj PS |302/120-B |
|31 |Muffasil PS; 150/09; |307 IPC |
| |24.06.09 | |
|32 |Siwan Town; 20/02; |302/ 120 (NB)/34 IPC |
| |05.03.02 | |
|33 | Siwan Town; 23/05; |147/148/149/341/379/364 IPC |
| |10.02.05 | |
|34 |Siwan Town ; 102/98; |302/34 IPC & 27 Arms Act |
| |13.07.98 | |
|35 |Muffasil PS; 32/01; |307/149 IPC & @7 Arms Act |
| |15.03.01 | |
|36 |Siwan Town; 145/98; |147/148/149/307/323/341/353/379/|
| |09.09.98 |504 IPC & 27 Arms Act |
|37 |Siwan Town; 147/98; |307/139 IPC & 27 Arms Act |
| |09.09.98 | |
|38 |Hussasinganj PS; 31/01; |25(1-B)A/26 Arms Act & 3/4 |
| |17.03.01 |Explosive Act & |
| | |147/148/149/324/307/302/ |
| | |353/332/333/335/120-B IPC |
|39 |Hussainganj PS; 32/01; |147/148/120-B/435/149/333/353/ |
| |17.03.01 |307 IPC & 27 Arms Act |
|40 |Hussainganj PS; 33/01; |25(1-A)/26/27/35 Arms Act & 3/5 |
| |17.03.01 |Explosive Act |
|41 |Siwan Town; 69/06; |383/34 IPC |
| |13.03.06 | |
|42 |Siwan Town; 54/97; |302/307/120-B/34 IPC & 27 Arms |
| |31.03.97 |Act |
|43 |Mirgabj (Gopalganj) PS; |302/34 IPC & 27 Arms Act |
| |119/91; 31.05.91 | |
|44 |Jugsalai (Jamsedpur) PS; |176/177/179/419/420/468/201/120-|
| |182/05 |B IPC |
|45 |KMP (Muzaffarpur); 182/05|176/177/179/419/420/468/201/120-|
| | |B IPC” |
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 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 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 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 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”
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 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
Administration[2] 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 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:-
“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 Singh[5] and Maneka Gandhi[6] 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.”
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. & Ors[7]:-
“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 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 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 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 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 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 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 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 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 Gujarat[9], Abdul Rehman Antulay v. R.S. Nayak[10], Raj Deo
Sharma (2) v. State of Bihar[11], Dwarka Prasad Agarwal v. B.D.
Agarwal[12], K. Anbazhagan v. Supt. of Police[13], Zahira Habibullah Sheikh
(5) v. State of Gujarat[14], Noor Aga v. State of Punjab[15], Amarinder
Singh v. Parkash Singh Badal[16], Mohd. Hussain v. State (Govt. of NCT of
Delhi)[17], Sudevanand v. State[18], Rattiram v. State of M.P.[19] and
Natasha Singh v. CBI[20].]”
34. In this regard, we may sit in the time machine and refer to a three-
Judge Bench judgment in Maneka Sanjay Gandhi & another v. Rani
Jethmalani[21], 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.”
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 Singh[22] 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 Marwah[23] 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
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 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) Delhi[25] approvingly reproduced para 33 of the earlier
judgment in Zahira Habibulla H. Sheikh v. State of Gujarat[26] (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 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 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.
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.
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
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.
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 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 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 & another[29], 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 India[30] 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) 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
Gujarat[31], 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
Congress[32] 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 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 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 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 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 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 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 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 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 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 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 Singh[36]. 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.”
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 & Ors[37]. 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 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 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:-
“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 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) confers upon this Court powers which can contravene the provisions
of Article 32.”
60. Placing reliance on A.R. Antulay v. R.S. Nayak & another[39], 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. Antulay[40], 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:-
“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 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 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 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 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
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 & ors[42], Re, Vinay Chandra
Mishra[43], 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 case[44] 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.
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 Gujarat[45]. 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 & Ors[46], Keshabhai Malabhai Vankar v. State of
Gujarat[47], Laxmidas Morarji v. Behrose Darab Madan[48] 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 another[49]. 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 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
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 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. 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 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
another[51]. 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, 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 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. & Ors[52], State of W.B. & Ors v. Sampat Lal &
Ors[53] Ashok Kumar Gupta & another v. State of U.P. & Ors[54] 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. Desai[55]
and Sakshi v. Union of India[56] 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 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.
74. In view of the aforesaid analysis, we record our conclusions and
directions in seriatim:-
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.
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 subservient and would not
prevail when fair trial requires transfer of the criminal proceedings.
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.
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.
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.
The Court in exercise of power under Article 142 of the Constitution cannot
curtail the fundamental rights of the citizens conferred under the
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.
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
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.
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
-----------------------
[1] (2016) 9 SCC 443
[2] (1980) 3 SCC 488
[3] (2012) 13 SCC 192
[4] (1978) 4 SCC 494
[5] Kharak Singh v. State of U.P. AIR 1963 SC 1295
[6] (1978) 1 SCC 248
[7] (1975) 3 SCC 185
[8] (2014) 2 SCC 401
[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
[21] (1979) 4 SCC 167
[22] (2009) 17 SCC 303
[23] (2005) 4 SCC 370
[24] (2010) 6 SCC 1
[25] (2012) 9 SCC 408
[26] (2004) 4 SCC 158
[27] (2015) 8 SCC 787
[28] (2016) 8 SCC 762
[29] AIR 1962 SC 305
[30] (2016) 7 SCC 221
[31] (1975) 1 SCC 11
[32] 1991 Supp (1) SCC 600
[33] (1998) 8 SCC 296
[34] (1977) 1 SCC 677
[35] (2016) 9 SCC 541
[36] AIR 1967 SC 1170
[37] (2010) 3 SCC 571
[38] AIR 1963 SC 996
[39] (1988) 2 SCC 602
[40] (1984) 2 SCC 183
[41] (1998) 4 SCC 409
[42] (1991) 4 SCC 406
[43] (1995) 2 SCC 584
[44] 1994 Supp. (1) SCC 145
[45] (2012) 7 SCC 80
[46] (1997) 8 SCC 713
[47] 1995 Supp. (3) SCC 704
[48] (2009) 10 SCC 425
[49] (2004) 8 SCC 569
[50] (2014) 16 SCC 508
[51] (2005) 3 SCC 284
[52] (2000) 9 SCC 572
[53] (1985) 1 SCC 317
[54] (1997) 5 SCC 201
[55] (2003) 4 SCC 601
[56] (2004) 5 SCC 518
-----------------------
38
