Trials can be transferred only in exceptional cases: Supreme Court

Declining the petition to transfer a case out of West Bengal, the top court said the power to transfer cases should be used sparingly and only when justice was apparently in grave peril

April 08, 2023 09:48 pm | Updated 11:06 pm IST - NEW DELHI

Supreme Court in New Delhi. File

Supreme Court in New Delhi. File | Photo Credit: Sushil Kumar Verma

The Supreme Court has held in a judgment that criminal cases under trial should be transferred from one State to another only in "exceptional circumstances".

Unnecessary shifting of cases would affect the morale of the State judiciary and prosecution agency.

A Bench led by Justice Surya Kant was recently dealing with the murder of a political worker, Kurban Sha, in Purba Medinipur, West Bengal.

Sha was shot dead by goons in 2019. The family of Sha had approached the top court to transfer the trial to Assam. They alleged that fair trial was not possible in West Bengal.

The West Bengal government suddenly, in 2021, ordered the public prosecutor to withdraw the prosecution against the accused. The Calcutta High Court pro-actively stepped in and annulled the government notification. The trial court also refused to grant bail to the accused after the victim's family and witnesses complained of threats.

In his judgment for the top court Bench, Justice Kant commended the interventions of the judiciary, saying that "justice should not only be done, but should manifestly and undoubtedly be seen to be done”.

Declining the plea to transfer the case out of West Bengal, the court said the power to transfer cases under Section 406 of the Code of Criminal Procedure should be used sparingly and only when justice was apparently in grave peril.

"This court has allowed transfers only in exceptional cases considering the fact that transfers may cast unnecessary aspersions on the State Judiciary and the prosecution agency. Thus, over the years, this court has laid down certain guidelines and situations wherein such power can be justiciably invoked," Justice Kant observed.

The judgment summarised a catena of apex court verdicts giving the possible situations in which an ongoing trial could be transferred.

These include when the State or prosecution is acting hand in glove with the accused; when there is material to show that the accused may influence the prosecution witnesses or cause physical harm to the complainant; when comparative inconvenience and hardships are likely to be caused to the accused; when there is a communally surcharged atmosphere indicating some proof of inability of holding fair and impartial trial because of the accusations made and the nature of the crime committed by the accused; existence of some material from which it can be inferred that some persons are so hostile that they are interfering or are likely to interfere either directly or indirectly with the course of justice.

The convenience of parties and witnesses as well as the language spoken by them could also act as a relevant factor when deciding a transfer petition, the court said.

Besides the pro-active exercises taken by the High Court and the trial judge, the Bench said transferring the current case would present logistical issues. More than 90 witnesses, most of whom are Bengali speaking, are yet to be examined.

"The transfer of trial to any other neighbouring state will cause serious impediment in the deposition of those witnesses and some of them might be reluctant to travel to a far away place and, thus, the case of the prosecution will be severely prejudiced," the court said.

However, the Bench transferred the trial to the Chief Judge, City Sessions Court, in Kolkata with the approval of the State High Court.

Justice Kant ordered the trial to be concluded within six months and the appointment of a special public prosecutor in the case. The Supreme Court ordered the victim's family to be provided adequate security.

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