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Afjal Ali Sha @ Abjal Shaukat Sha vs. State of West Bengal & Ors.

Transfer Petition (Criminal) · 2023 INSC 257Decided 17 Mar 2023
Transfer Petition (Criminal) No. 409 of 2021
Surya Kant · J.K. Maheshwari

Background

The petitioner's brother was shot dead allegedly by "musclemen" working for a political party in West Bengal, and a murder trial began against several accused. Midway through the trial, the West Bengal government directed the Public Prosecutor to withdraw the case under Section 321 CrPC, and a Link Judge hurriedly allowed the withdrawal, leading to an acquittal, but the Calcutta High Court later set aside both the government's withdrawal notification and the Link Judge's order as arbitrary and an abuse of process. Alleging continued political interference, witness intimidation, and a compromised prosecution, the deceased's brother sought to have the trial moved out of West Bengal entirely.

Decision Breakdown

The Supreme Court held that the petitioner, as the deceased's brother, qualified as a "party interested" under Section 406 CrPC and had standing to seek transfer. On merits, it found the State's conduct (first opposing bail vigorously, then abruptly trying to withdraw the prosecution) genuinely troubling, and some of the petitioner's apprehensions well-founded. However, since more than 90 (mostly Bengali-speaking) witnesses were yet to be examined, transferring the trial to another state would cause serious hardship to the prosecution and witnesses. Instead of an out-of-state transfer, the Court transferred the trial within West Bengal to the City Sessions Court, Calcutta, directed appointment of a Special Public Prosecutor, ordered enhanced security for witnesses and the complainant's family, directed the main accused's transfer to Calcutta's Central Jail, barred bail except by the High Court, and asked the High Court's Portfolio Judge to monitor the trial.

Lesson Learnt

Courts will not automatically shift a criminal trial to another state merely because of apprehensions about a compromised prosecution; where witness convenience weighs against an out-of-state transfer, courts can instead safeguard fairness through in-state transfer, special prosecutors, enhanced security, and judicial monitoring.

Official source (sci.gov.in)View Judgment (PDF)

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