Full Judgement
Asha Ranjan Vs. State of Bihar & Ors.
[Writ Petition (Criminal) No. 132 of 2016]
Chandrakeshwar Prasad Vs. Union of India & Ors.
[Writ Petition (Criminal) No. 147 of 2016]
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. No
FIR P.S. case No
Under Section
Status of Trial conviction (with sentence)/Pending/Acquittal (in series)
Status of appeal
Date of Grant of bail by District/High Court
Period of Imprisonment before grant of bail
1
Muffasil PS Case No. 181/98 dt 18.09.98
147/341/342/448 /504 IPC
2 Year imprisonment & 5000/- fine
-
Bail 28.10.0 9 by HC Patna
0 days
2
C-2 34/05 Dt. 07.04.05
506 IPC
1 year imprisonment and Rs.1000 fine
-
Bail 28.10.0 9 by Spl. Court
3 yrs, 8 months, 8 days
3
Muffasil PS case 61/90 Dt. 12.04.90
363/365 IPC
3 year imprisonment
-
Bail 11.03.1 1 By Spl. Court Siwan
0 Days
4
Hussainganj ps case No.14/99 dt. 07.2.99
364/34 IPC
Life & Rs.10,000/-
-
Bail 21.10.9 9 by HC Patna
3 yrs 3 mon
5
Darauli ps C.No. 34/96 dt: 04.05.96
307/353/34 IPC
10 years & Rs. 2000/-
Bail 21.10.0 9 by HC Patna
2 yrs 1 mon 21 days
6
Hussainganj ps Case no.44/05 Dt. 24.04.05
25I-B) A/26/35 Arms Act
3 Yrs imprisonment & 5000/- fine
-
Bail 20.10.0 9 by HC Patna
2 yrs 9 mon 10 days
7
Hussainganj ps Case no. 42/05 Dt:24.04.05
414 IPC & 25 (I-B)/26 Arms Act
5 years imprisonment
Bail 16.07.1 1
5 yrs 8 mon 9 days
8
Muffasil ps Case no. 131/04 Dt: 16.08.04
364/336/302/30 1 IPC
Life imprisonment
-
Bail 14.07.1 6 by HC Patna
6 yrs 10 months 5 days
9
Hussainganj ps Case no.41/05 Dt: 24.04.05
411/414 IPC
3 yrs imprisonment
Bail 28.10.0 9 by HC Patna
3 yrs 11 months 21 days
10
Pachruhi ps Case no. 102/04 Dt. 18.10.04
392/411 IPC
This case is merged in Hussainganj ps case no. 41/05
-do-
ACQUITTED CASES
Sl. No.
FIR P. S. Case No. .../dated
Under Section
1
Siwan Town PS Case No. 217/85 Dt. 02.09.85
307/323/341/34 IPC & 27 Arms Act
2
Siwan Town Case No.77/86 dt: 08.04.86
394 IPC
3
Siwan Town PS case no. 79/86 Dt. 10.04.86
399/402/411/412/414/216A IPC & 25 A/26/35 Arms Act
4
Muffasil PS case no. 228/86
147/148/149/325/302 IPC & 27 Arms Act 3/5 Explosive Act
5
Hussainganj PS case no. 125/88, Dt. 12.09.88
363/34 IPC
6
Siwan Town PS case no. 183/88 Dt: 10.09.88
307 IPC & 27 Arms Act
7
Siwan Town PS case no. 57/89 Dt: 15.03.89
307/302/34 IPC & 3/4 Explosive Act
8
Muffasil PS case 91/89
307/34 IPC & 27 Arms Act
9
Mairwa (Jiradei) PS case no. 137/89 dt: 21.11.89
147/148/149/307/348/302/34 IPC & 3/4 Explosive Act
10
Siwan Town PS Case no. 108/94 /Dt: 22.05.94
147/148/149/324/307 IPC & 27 Arms Act
11
Pachurkhi PS case no. 60/945 Dt 13.01.94
147/323/427/379 IPC
12
Siwan Town PS case no. 155/94 Dt: 08.08.94
302/307/324/ 120 (B)/ 34 IPC & 27 Arms Act
13
Pachrukhi PS case no. Jul-95 Dt; 20.01.95
143/144/427/435 IPC
14
Pachrukhi PS case 08/95 Dt; 20.01.95
302/34 IPC
15
Siwan Town PS caseno. 11/96 Dt: 18.01.96
341/342/323/307/34 IPC & 27 Arms Act
16
Hussainganj PS case no. 99/96 Dt. 02.05.96
147/148/149/324/307/302 IPC & 27 Arms Act
17
Andar PS case no. 32/96 Dt. 02.05.96
147/148/149/324/307/302 IPC & 27 Arms Act
18
Andar PS case no. 36/96 Dt. 02.05.96
147/148/149/307 IPC
19
Siwan Town PS case no. 205/90 dt: 03.09.90
365/387 IPC
20
Muffasil PS case no. 52/88
147/148/324/323/307/379/IPC
PENDING CASES
S. No
FIR P.S. Case No/ Dated
Under Section
1
Hussainganj ; 43/05; 24.04.05
25 (I-B) 25 Arms Act
2
Siwan Town ; 99/05; 22.04.05
420/467/468 IPC
3
Muffasil PS; 97/07; 02.05.07
353/506 IPC
4
Hussainganj PS 134/06; 13.10.05
392/411 IPC
5
Muffasil PS; 96/07; 02.05.07
353/506 IPC
6
Hussainganj PS; 39/05; 24.04.05
25 (I-B) a/26 Arms Act, 120 B
7
Muffasil PS; 289/10; 22.07.10
414/353 IPC
8
Andarps ; 41/99; 05.07.99
14/248/149/341/324 IPC & 27 Arms Act
9
C-2; 54/05; 25.04.05
9/44/46/48/49/49(B)/50/51
10
Hussaingani; 114/05; 26.08.05
25(1-b) A/25 Arms Act (1-B) (H) 25(4) 26(1)35 Arms Act
11
Siwan Town; 11/01; 18.01.01
147/148/186/353/452/506 IPC
12
Hussainganj PS; 48/05; 24.04.05
379 IPC & 39/44 Electricity Act
13
C-2; 27/09; 16.03.09
52 Prisoner Act 1984
14
Siwan Rail PS; 33/97; 02.09.97
147/148/149/341/323/353/ 504 IPC @ 27 Arms Act
15
Muffasil PS; 131/06; 17.06.06
189/353/506 IPC
16
Muffasil PS; 225/11; 12.07.11
353/504/506/34 IPC
17
Siwan Town; 229/05; 25.10.05
341/302/307/34 IPC
18
Muffasil PS; 333/11; 510.11
188 IPC & 52 Prisoner Act 1894 u/s 420/468/471 IPC
19
Muffasil PS; 56/07; 20.03.07
147/149/341/342/323/307/337 IPC
20
Andar PS; 10/98; 29.01.98
147/148/149/341/506 IPC & 27 Arms Act
21
Town PS; 220/14; 17.06.14
302/34/120 B IPC & 27 Arms Act
22
C-2; 62/07; 03.08.07
52 Prisoner Act 1894
23
C-2; 67/08; 01.09.08
52 Prisoner Act 1894
24
Muffasil PS; 226/13; 01.06.13
188 IPC & 52 Prisoner Act 1894
25
Muffasil PS; 182/08; 02.08.08
341/504/353/34 IPC
26
Hussainganj PS; 34/01; 17.03.01
454/380 IPC
27
Siwan Town PS; 33/01; 17.03.01
147/148/149/307/353/323/333/379/ 380/447/452/427/435/120 - b IPC & 27 Arms Act
28
Muffasil PS; 08/01; 13.01.01
364 IPC
29
Barhariyaps ; 82/04; 08.08.04
302/120-B, 363 IPC & 27 Arms Act
30
Hussainganj PS
302/120-B
31
Muffasil PS; 150/09; 24.06.09
307 IPC
32
Siwan Town; 20/02; 05.03.02
302/ 120 (NB)/34 IPC
33
Siwan Town; 23/05; 10.02.05
147/148/149/341/379/364 IPC
34
Siwan Town ; 102/98; 13.07.98
302/34 IPC & 27 Arms Act
35
Muffasil PS; 32/01; 15.03.01
307/149 IPC & @7 Arms Act
36
Siwan Town; 145/98; 09.09.98
147/148/149/307/323/341/353/379/ 504 IPC & 27 Arms Act
37
Siwan Town; 147/98; 09.09.98
307/139 IPC & 27 Arms Act
38
Hussasinganj PS; 31/01; 17.03.01
25(1-B)A/26 Arms Act & 3/4 Explosive Act & 147/148/149/324/307/302/ 353/332/333/335/120-B IPC
39
Hussainganj PS; 32/01; 17.03.01
147/148/120-B/435/149/333/353/ 307 IPC & 27 Arms Act
40
Hussainganj PS; 33/01; 17.03.01
25(1-A)/26/27/35 Arms Act & 3/5 Explosive Act
41
Siwan Town; 69/06; 13.03.06
383/34 IPC
42
Siwan Town; 54/97; 31.03.97
302/307/120-B/34 IPC & 27 Arms Act
43
Mirgabj (Gopalganj) PS; 119/91; 31.05.91
302/34 IPC & 27 Arms Act
44
Jugsalai (Jamsedpur) PS; 182/05
176/177/179/419/420/468/201/120- B IPC
45
KMP (Muzaffarpur); 182/05
176/177/179/419/420/468/201/120- B IPC"
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-Ã -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 anal
