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

SURYA KANT, J. 1. This transfer petition has been preferred under Section 406 of the Code of Criminal Procedure, 1973 (hereinafter, ‘CrPC’), read with Article 139A of the Constitution of India and Order 39 of the Supreme Court Rules, 2013. The Petitioner herein is the brother of one Kurba n Sha (hereinafter, ‘Deceased’) and he seeks transfer of the criminal trial S.T. No. 1 (03) of 2020, arising out of FIR No. 495 of 2019 registered at PS Panskura, pending in the Court of Additional Sessions Judge , 3rd Court, Tamluk, Purba Medinipur, West Bengal (hereinafter, ‘Trial Court’), to a competent court in the State of Assam, primarily on the ground that a fair trial will not be possible in the State of West Bengal. A. FACTS 2. The factual matrix is succinctly discussed below before delving into the aforesaid issue that arises for our consideration: - 3. On the date of incident, i.e., 07.10.2019, the Deceased is alleged to have been shot in the neck by ‘certain unknown musclemen & goons’ when he was working in the office of a political party. T he Deceased was immediately rushed to a hospital but was declared dead on arrival. On the next day, the subject FIR was lodged under Section 302 read with Section 120B of the Indian Penal Code, 1860 (hereinafter, ‘IPC’) and, under Sections 25 and 27 of the Arms Act, 1959 against Respondent No. 2 at the behest of one Jahar Sha (hereinafter, ‘De-facto Complainant’), who is stated to be the Deceased’s nep hew and an eyewitness to the alleged occurrence. 4. After investigation, the police authorities conc luded that Respondent Nos. 3 to 11 were also involved in the offence, along with Respondent No. 2. A chargesheet was submitted again st the said individuals along with a list of 107 witnesses, including the De-facto Complainant and the Petitioner. It is pertinent to mention that during the investigation, the police is also said to have recovered some incriminating material such as fire arms, ammunition and certain documents. 5. Accordingly, charges were framed against Respondent Nos. 2 to 8 and Respondent No. 11 by the Trial Court under Sections 302 read with 120B of IPC and, under Sections 25 and 27 of Arms Act, 1959. Respondent Nos. 9 & 10 had previously been declared as proclaime d 1097 offenders. The trial commenced in September, 2020. The main accused, i.e., Respondent No. 2, continues in custody as his repeated bail applications have been dismissed by the Trial Court as w ell as by the Calcutta High Court. 6. During the pendency of the trial, the Legal Remembrancer & Ex-Officio Secretary to the Government of West Benga l, Judicial Department, by an order of the Governor, issued a notific ation dated 26.02.2021 directing the Public Prosecutor to apply under Section 321 of CrPC and withdraw the criminal proceedings against Res pondent Nos. 2 to 11, subject to the consent of the learned Tria l Court. This notification was challenged by the De-facto Complainant be fore the Calcutta High Court. 7. Soon thereafter, on 01.03.2021, a newly appointed Pu blic Prosecutor moved an application before the learned Trial Court praying for withdrawal of the prosecution case stating that it was mar red with political and personal vendetta. This application was taken up for hearing on the very next day by a Link Judge who was presiding over the Trial Court, despite the fact that the case was listed for recor ding evidence on 10.03.2021. The Link Judge was reportedly informed about the pending challenge to the notification dated 26.02.2021 at the Calcutta High Court, but regardless thereto, he proceeded to hear the application and allowed the Prosecution to withdraw the case. As a result, Respondent Nos. 2- 11 were acquitted. 8. Meanwhile, the writ petition filed by the De-facto Complainant was taken up for hearing on the afternoon of the same day when the Trial Court had allowed the Public Prosecutor to withdraw the criminal case. A learned Single Judge of the High Court noted as follows: “Surprisingly, in the instant case, a specific notifi cation was issued on February 26, 2021, apparently communicating a direction of the Governor to instruct the concerned P ublic Prosecutor to withdraw the case–in-question subject to the consent of the Sessions Court. However, not an iota of rea son and/or how such withdrawal would advance the cause of justice and public interest has been indicated in the said order. That apart, the modus operandi in the present case is ra ther transparent since the Public Prosecutor actually acted on such instruction and made an application pursuant to the order of the State Government and, despite having knowledge of this AFJAL ALI SHA @ ABJAL SHAUKAT SHA v. STATE OF WEST BENGAL & ORS. [SURYA KANT, J.] Court being in seisin of the present writ petition, the concerned Sessions Judge has granted consent for such withdra wal, which has the effect of acquitting the accused persons . It is evident from the stand of the State taken on all previous occasions when bail was rejected, that the State vehemently opposed even the grant of bail to the acc used. Hence, it defies logic completely as to what prompt ed the Government to instruct the Public Prosecutor-in- ques tion to withdraw the case against the accused persons all o f a sudden. Despite the self-imposed restraint which this court imposes upon itself in the exercise of jurisdiction under Article 226 of the Constitution of India, such restraint cannot be a fetter to the court exercising such jurisdiction for the ends of justice where manifest abuse of the process of law ha s taken place. If the writ court shuts its eyes to the perpe tration of mala fide and arbitrary administrative action, it wo uld be failing in its incumbent duty of judicial review conferr ed by the Constitution of India. In the present case, in view of the arbitrary and unreasoned nature of the instructions of the State to the Public Prosecutor dated February 26, 2021, pursuant to which the Public Prosecutor acted and even the Sessions Court grante d consent to such withdrawal, the said instruction as well as the effects thereof have to be set aside.” 9. The High Court observed that none of the parameters to invoke jurisdiction under Section 321 of CrPC were applied either by the Public Prosecutor or by the State and resultantly, it was held that the exercise was bad in law and that the mala fides of the State was evident from its contradictory stand wherein it previously opposed the bail applications but now was seeking to withdraw the prosecution itself. Ac cordingly, the High Court directed that any action taken in the meantime, pursuant to the State Government’s notification dated 26.02.2021, including the order allowing withdrawal of the case was liable to be set aside. It ordered accordingly. 10. The De-facto Complainant thereafter submitted an a ffidavit before the Trial Court expressing his ‘no-objection’ to the grant of bail to 1099 Respondent No. 2. Meanwhile, Respondent No. 2 appealed against the order of the learned Single Judge before a Division Bench, inter alia, on the ground of violation of the principles of audi alteram partem. The Division Bench set aside the order on this ground and remanded the matter for fresh adjudication. It must be noted that the Petitioner herein had also filed an application for impleadment in the proceedings before the Division Bench but the same was closed with liberty to renew the prayer before the Single Judge. 11. On remand, the learned Single Judge first considered the prayer of the De-facto Complainant for withdrawal of the writ petition and also the application of the Petitioner herein to be impleaded as a party. The learned Single Judge, vide an interim order in the second rou nd of proceedings, noted firstly that the Petitioner is the brother of the Deceased and has the locus to file a fresh writ petition and secondly, in view of the alleged threat to life & liberty of the De-facto Complainant, his name was deleted and the Petitioner was transposed as th e writ petitioner. The Single Judge observed that the withdrawal of the w rit petition at that stage would frustrate the order of the lea rned Division Bench as well as the ends of justice. It was, thus, again directed that the order of the Link Judge would not be acted upon and Respondent No. 2 shall not be released from custody, without an order of the compe tent court. This order was later, upheld by the Division Bench in appeal. 12. Meanwhile the trial proceeded but during his cross-examination, the De-facto Complainant is stated to have resiled from the statement made during examination-in-chief but nevertheless he was not declared hostile by the Public Prosecutor. Thereafter, the Peti tioner filed an application before the Trial Court to declare the De-facto Complainant hostile and to allow the Petitioner’s lawyer to cross-examine him. The Trial Court considered the said application and noted that the De-facto Complainant had “made some statements in his cross examination, which are not in conformity with the version of his examination-i n- chief”. The Petitioner’s application was however, reject ed after appreciation of the statutory provisions and the case law. The Trial Court held as follows: “In view of the discussions made in the foregoing paragraphs, I am of the opinion that the prosecution s hould be given a fair chance to unearth the true facts, a nd an AFJAL ALI SHA @ ABJAL SHAUKAT SHA v. STATE OF WEST BENGAL & ORS. [SURYA KANT, J.] opportunity shall be given to the Ld. Spl. P.P. to cross examine PW1 after declaring him hostile. Hence, the Ld. Spl. P.P., and not the Ld. Advocate appointed by this instant petitioner, shall be given per mission to cross-examine PW1. The Ld. Advocate appointed by the petitioner Afjal Ali Sha can only be permitted to act under the direction of Ld. Public Prosecutor in view of Sec 301(2 ) of CrP.C.” 13. Meanwhile, the instant Transfer Petition was filed in whi ch this Court vide order dated 05.10.2021 directed stay on further proceedings in the trial. 14. Thereafter, the learned Single Judge of the High Court, on 02.08.2022, finally decided the writ petition and set aside the Government’s notification dated 26.02.2021. It was observed that “The attending circumstances of the present case do not inspire much confidence in the bona fides of the State and PP behind the withdrawal” . The Court viewed that: - “When the charges were initially levelled, the Stat e itself wished Godspeed to the prosecution, which is reflected f rom the pace at which investigation was concluded and t rial commenced. Yet, when the respondent no. 5 allegedly l eaned in favour of the ruling party of the State, the prosec ution beat a hasty retreat by seeking to withdraw the prosecution, which would have the effect of the accused being discharged sc ot- free without trial.” It was also noted that on the one hand, the State was def ending the withdrawal of Prosecution and on the other, was expediting the trial wherein several witnesses were resiling from their statements. In light of these circumstances, all action taken in pursuance of the notification dated 26.02.2021, including the application and Trial Court’s order under Section 321, CrPC was set aside. The said order appears to not have been challenged and has attained finality. 15. The Petitioner has further alleged that multiple abnormalities have occurred during the pendency of the trial, such as the change of the Public Prosecutor four times and the harassment meted ou t to the prosecution witnesses and relatives of the Deceased. The wife of the 1101 Deceased, Saida Sabana Banu Khatun, is alleged to have been attacked by Respondent No. 2’s henchmen and relatives of the other accus ed persons in the premises of the Trial Court. One witness, n amed Imran Ali, was allegedly abducted by associates of Respondent No. 2 who also threatened to kill him. The Petitioner has contended that his security cover was withdrawn. It is also averred that the authori ties were duly informed of such instances but no appropriate action has bee n taken. The Petitioner also states that false cases, including one alleging rap e, have been fastened on him, in an effort to threaten the wit nesses and influence them to depose in favour of the accused persons. 16. It is in this factual backdrop that this transfer petition has been filed. B. SUBMISSIONS 17. Mr. P.S. Patwalia, learned senior counsel for the Petitione r has raised the following contentions seeking transfer of the trial outside the State of West Bengal: (i) The conduct of the State, which was vigorously opposing the bail applications of Respondent No. 2 in the past, has dramatically changed and is now detrimental to the Prosecution’s case; (ii) Respondent No. 2 has at least thirty-four (34) criminal cases registered against him and yet, the State directed withdrawal from prosecution without any cogent reason. The power under Section 321, CrPC was blatantly misused; (iii) The De-facto Complainant has been gained over during the trial as is evident from his no-objection to the grant of bail to Respondent No. 2; his prayer to withdraw the writ petition challenging the State’s notification under Section 321, CrPC and the De-facto Complainant turning hostile during his cross-examination; (iv) The witnesses are being threatened and are turning hos tile in their cross examination. False cases have been instituted against crucial witnesses to browbeat them; (v) There is a serious threat to the life and libert y of the witnesses and they may be influenced due to the lack of a safe environment to truthfully depose before the court. AFJAL ALI SHA @ ABJAL SHAUKAT SHA v. STATE OF WEST BENGAL & ORS. [SURYA KANT, J.] Reliance has been placed on certain observations of the Calcutta High Court regarding the mala fides of the State; (vi) It is alleged that on a previous occasion, when the High Court directed to shift Respondent No. 2 from Purba Medinipur to a hospital in Kolkata for medical treatment, the same was not done. Rather, he was kept in the hospital at Purba Medinipur where he had access to luxurious facilities; (vii) Reliance has been placed on the High Court’s observations while rejecting Respondent No. 2’s bail application to the effect that: “The aforesaid narration of events clearly disclose s a prevaricating stance on the part of the State of West B engal. While on one hand, the State proceeded to bury the prosecution by resorting to its withdrawal under Section 321 Cr.P.C., on the other hand it purported to continue the prosecution against the petitioner and other accused persons by examini ng witnesses. … Be that as it may, it is relevant to note in the pr osecution conducted by the State, most of the witnesses have re siled from their earlier statements to police and have turned hostile. It is also pertinent to bear in mind even the informant J ahar Sha, the original writ petitioner in WPA 6315 of 20 21 expressed apprehension and was unwilling to proceed wi th the said proceeding challenging withdrawal of prosecu tion. These circumstances give rise to a serious apprehensi on in the mind of this Court as to the overwhelming and malevolent influence on the witnesses as well as the informant which had prompted them from either withdrawing from the w rit petition or resiling from their earlier statements befor e police during deposition in Court.” (viii) In these circumstances, there is a genuine apprehension in the mind of the Petitioner, brother of the Deceased, that they would not receive free and fair justice in the State of West Bengal as the prosecution is compromised; 1103 (ix) Reliance has been placed on Surendra Pratap Singh v. State of Uttar Pradesh 1 to urge that in similar facts and circumstances, the trial was transferred from the State of Uttar Pradesh to the State of Madhya Pradesh, in order to do fair justice to all the parties. The judgment in K. Anbazhagan v. State of Karnataka 2 has also been cited to iterate that once a case stands transferred from one state to another, the transferee state has full control over the prosecution and becomes the prosecuting State. It is the Petitioner’s contention that once the prosecuting stat e changes, the trial can be completed in a fair and just manner. 18. During the course of hearing, Mr. Patwalia clarified that it is not necessary to transfer the trial to the State of Assa m and this Court may consider the desirability of transferring it to any other neighbouring States, like Orissa or Jharkhand. 19. Opposing the transfer, Mr. Kapil Sibal and Mr. Neeraj Kishan Kaul, learned senior counsels on behalf of Respondent No. 1- State of West Bengal and Mr. V. Giri, learned senior counsel o n behalf of Respondent No. 2, contended that the facts as revealed do not make out a case for transfer of the trial outside the State of Wes t Bengal. At the outset, they have challenged the locus of the Petitioner to file this transfer petition, contending that the Petitioner is not the complainant and is only a witness in the trial. They have made the following submissions: (i) The Deceased’s wife did not approach the state police about the alleged attack on her in the Trial Court premises on 02.03.2021 and the Petitioner’s security arrangement was never withdrawn by the State. The police took prompt action in the matter of abduction of witness Imran Ali as the accused persons & the victims were swiftly located and chargesheet has been filed in the case; (ii) The veracity of the media reports relied upon b y the Petitioner to show that Respondent No. 2 has access to facilities, such as smartphone, headphones etc. are not based upon correct facts; 1 Surendra Pratap Singh v. State of Uttar Pradesh (2010) 9 SCC 475. 2 K. Anbazhagan v. State of Karnataka (2015) 6 SCC 86. AFJAL ALI SHA @ ABJAL SHAUKAT SHA v. STATE OF WEST BENGAL & ORS. [SURYA KANT, J.] (iii) The Public Prosecutor gave detailed reasons in his withdrawal application before the Trial Court in compliance with Section 321 of CrPC; (iv) The requirements under Section 406, CrPC are not met in this case as no reasonable apprehension that justice wil l not be done, is made out. (v) There is no allegation or whisper of bias in the State Judiciary as is evident from the fact that the accused persons’ bail applications have constantly been rejected by the Trial Court and such rejection has been upheld in the High Court. The High Court has acted as a robust supervisory mechanism to oversee the trial proceedings and check any lapses occurring therein; (vi) There are no allegations of unfair investigation and the only Trial Court order found fault with was the order passed by the Link Judge allowing the application for withdrawal of prosecution; (vii) There are 107 Prosecution witnesses in the trial out of which 80 witnesses reside in Purba Medinipur district where the trial is going on. Till the trial was stayed by this Court, the Trial Court had examined 11 witnesses. Most witnesses are stated to be Bengali speaking. In light of thes e circumstances, it is stated that the transfer of the case to a court outside the State of West Bengal will cause extreme inconvenience to the Prosecution & most witnesses. The judgment in Abdul Nazar Madani v. State of Tamil Nadu3 wherein this Court considered the convenience of th e Prosecution, other accused persons, the witnesses and the larger interest of society while deciding a transfer petition, has been pressed into aid. Other cases have also similarly been cited4; (viii) Reliance has been placed on Nahar Singh Yadav v. Union of India5 wherein this Court noted that the power under 3 Abdul Nazar Madani v. State of Tamil Nadu (2000) 6 SCC 204. 4 Sri Jayendra Saraswathy Swamigal (II) v. State of T.N. (2005) 8 SCC 771; Harita Sunil Parab v. State (NCT of Delhi) (2018) 6 SCC 358; Swaati Nirkhi v. State (NCT of Delhi) 2021 SCC Online SC 202. 5 Nahar Singh Yadav v. Union of India (2011) 1 SCC 307. 1105 Section 406, CrPC is to be exercised sparingly and that transfer should be allowed only when there is a well- substantiated apprehension that justice will not be dispensed impartially. Other similar decisions have also been brought to our notice6; (ix) Ashish Chandra v. Asha Kumari7 has been cited to refer the observations of this Court that transfer of cases have a demoralizing effect on trial courts. (x) The Deceased was and the Petitioner is a politic ally influential person and transfer of the proceedings is sought to a jurisdiction where he will be able to exert his political influence. The Deceased himself is stated to have had multiple criminal cases pending against him; (xi) There is nothing on record to show that witnesses have been threatened. Respondent no. 2, being in custody, cannot exert any threat or pressure on the witnesses; (xii) The Petitioner has delayed the trial through t hese proceedings and the accused persons have been in custody for over three years. As such, it is contended that prejudice has been caused to the accused persons and they shall incur heavy expenses to defend themselves if the case were to be transferred outside the State of West Bengal; (xiii) To ensure a fair trial, this Court may transfer the case anywhere in the state and appoint a Public Prosecutor while protecting the accused persons and the complainant. 20. All other Respondents have supported this stance and made similar averments. C. ANALYSIS 21. We have carefully considered the submissions made by the parties and perused the record. Before adverting to the contentious issue, we deem it appropriate to discuss the settled principles in relation to the exercise of power to transfer cases under Section 406, CrPC as well as 6 Gurcharan Dass Chadha v. State of Rajasthan (1966) 2 SCR 678; Amarinder Singh v. Parkash Singh Badal (2009) 6 SCC 260. 7 Ashish Chandra v. Asha Kumari, (2012) 1 SCC 680 AFJAL ALI SHA @ ABJAL SHAUKAT SHA v. STATE OF WEST BENGAL & ORS. [SURYA KANT, J.] the preliminary objection raised by the respondents on the locus standi of the petitioner in seeking transfer of the subject trial. C.1. LOCUS STANDI OF THE PETITIONER 22. Section 406(2) of the CrPC provides that the Supreme Court may transfer a case “only on the application of the Attorney-General of India or of a party interested”. 23. In the case of K. Anbazhagan v. Superintendent of Police8, this Court discussed the meaning of expression “a party interested” under Section 406, CrPC and held as follows: “The words “party interested” are of a wide import and, therefore, they have to be given a wider meaning. If it w as the intendment of the legislature to give restricted me aning then it would have used words to the effect “party to the proceedings”. In this behalf the wording of Article 139-A o f the Constitution of India may be looked at. Under Article 139- A the transfer can be if “the Supreme Court is satisfied on its own motion or on an application made by the Attorney General of India or by a party to any such case”. (emphasis sup plied) Also if the provisions of Chapter XXIX of the Crimi nal Procedure Code are looked at, it is seen that when the legislature intended a “party to the proceedings” to h ave a right of appeal it specifically so stated. The legi slature, therefore, keeping in view the larger public interes t involved in a criminal justice system, purposely used words of a wider import in Section 406. Also, it is a well-settled pri nciple of law that statutes must be interpreted to advance the caus e of statute and not to defeat it.” 24. Considering this apt and expansive interpretation of phra se ‘party interested’ under Section 406(2) of the CrPC, we hold that the Petitioner, being the real brother of the Deceased, is vitally interested in a fair trial so that the Deceased and his family get s justice. The Respondents’ challenge to the locus standi of the Petitioner is thus rejected. 8 K. Anbazhagan v. Superintendent of Police (2004) 3 SCC 767. 1107 C.2. GROUNDS FOR TRANSFER 25. Coming to the second limb of the contentions raised on behalf of the parties, we may firstly notice some of the well-defined contours in relation thereto. It has by now been well established that a well-founded apprehension that justice will not be done is a prerequisite for transfer of the case. Tracing the power of transfer of a case, we ar e reminded of Lord Hewart’s dictum in Rex v. Sussex Justices9 stating that “It is not merely of some importance but is of fundamental importan ce that justice should not only be done, but should manifes tly and undoubtedly be seen to be done ”. 26. The right to a fair trial is a fundamental right under Article 21 of the Constitution of India10 and its importance cannot be emphasised enough. However, to obtain the transfer of a case, the Petition er is required to show circumstances from which it can be inferred t hat he entertains a reasonable apprehension. This apprehension cannot be imaginary and cannot be a mere allegation.11 27. The power of transfer under Section 406, CrPC is t o be exercised sparingly and only when justice is 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.12 Thus, over the years, this Court has laid down certain guidelines and situations wherein such power can be justiciably invoked. 28. In Amarinder Singh v. Parkash Singh Badal 13, this Court observed as follows: “19. Assurance of a fair trial is the first imperative of the dispensation of justice. The purpose of the crim inal trial is to dispense fair and impartial justice uninfluen ced by extraneous considerations. When it is shown that the publ ic confidence in the fairness of a trial would be seri ously 9 Rex v. Sussex Justices [1924] 1 KB 256. 10 Zahira Habibullah Sheikh v. State of Gujarat (2006) 3 SCC 374; Maneka Sanjay Gandhi v. Rani Jethmalani (1979) 4 SCC 167; R. Balakrishna Pillai v. State of Kerala (2000) 7 SCC 129. 11 Amarinder Singh v. Parkash Singh Badal (2009) 6 SCC 260. 12 Nahar Singh Yadav v. Union of India (2011) 1 SCC 307; Neelam Pandey v. Rahul Shukla [Transfer Petition (Criminal) No. 298 of 2020, 22 F ebruary 2023]. 13 Amarinder Singh v. Parkash Singh Badal (2009) 6 SCC 260. AFJAL ALI SHA @ ABJAL SHAUKAT SHA v. STATE OF WEST BENGAL & ORS. [SURYA KANT, J.] undermined, the aggrieved party can seek the transf er of a case within the State under Section 407 and anywhere in t he country under Section 406 CrPC.” 29. In Nahar Singh Yadav v. Union of India 14 after analysing the case-law, this Court enumerated the basic principles of the power of transfer under Section 406, CrPC as follows: “29. Thus, although no rigid and inflexible rule or test could be laid down to decide whether or not power under Section 406 CrPC should be exercised, it is manifest from a bare reading of sub-sections (2) and (3) of the said section and on an analysis of the decisions of this Court that an or der of transfer of trial is not to be passed as a matter of routin e or merely because an interested party has expressed so me apprehension about the proper conduct of a trial. This pow er has to be exercised cautiously and in exceptional situatio ns, where it becomes necessary to do so to provide credibili ty to the trial. Some of the broad factors which could be kept in mind while considering an application for transfer of the trial are: (i) when it appears that the State machinery or prosecution is acting hand in glove with the accuse d, and there is likelihood of miscarriage of justice due t o the lackadaisical attitude of the prosecution; (ii) when there is material to show that the accused may influence the prosecution witnesses or cause physical harm to the complainant; (iii) comparative inconvenience and hardships likely t o be caused to the accused, the complainant/the prosecut ion and the witnesses, besides the burden to be borne by the State exchequer in making payment of travelling and other expenses of the official and non-official witnesses; (iv) a communally surcharged atmosphere, indicating some proof of inability of holding fair and impartia l trial because of the accusations made and the nature of the cr ime committed by the accused; and 14 Nahar Singh Yadav v. Union of India (2011) 1 SCC 307. 1109 (v) 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.” 30. In R. Balakrishna Pillai v. State of Kerala 15, this Court noted the crucial separation of powers between the judicia ry and the executive and held that “ Judges are not influenced in any manner either by the propaganda or adverse publicity. Cases a re decided on the basis of the evidence available on record an d the law applicable.” 31. The convenience of parties and witnesses as well as the language spoken by them are also relevant factors when de ciding a transfer petition, as has been noted by this Court in a catena of judgments.16 32. In some of the recent decisions including in Neelam Pandey v. Rahul Shukla 17, this Court has viewed that transfer of a criminal case from one state to another implicitly reflects upon credibility of not only the State Judiciary but also of the prosecution agency. 33. Adverting to the facts of the case in hand in light of the principles enunciated by this Court from time to time, it is true th at the State of West Bengal has taken a complete u-turn with a view to help the main accused, namely, Respondent No. 2 and it went to the extent of resorting to its powers under Section 321 of CrPC to withdraw the prose cution itself. A plain reading of Section 321, CrPC leaves no room to doubt that it is the Public Prosecutor in-charge of the case who has to apply his mind independently and impartially to form a view for withdrawal from the prosecution with the consent of the court. The procedure followed in the case in hand was completely alien to the scheme of Sec tion 321, CrPC as the decision to withdraw prosecution was taken at the level of the State Government and the Public Prosecutor was merely asked to act upon the said Government notification. The Link Judge also showed tearinghurry in accepting the application of the Public Prose cutor and 15 R. Balakrishna Pillai v. State of Kerala (2000) 7 SCC 129. 16 Abdul Nazar Madani v. State of TN (2000) 6 SCC 204; Sri Jayendra Saraswathy Swamigal (II) v. State of T.N. (2005) 8 SCC 771; Harita Sunil Parab v. State (NCT of Delhi) (2018) 6 SCC 358. 17 Neelam Pandey v. Rahul Shukla [Transfer Petition (Criminal) No. 298 of 2020, 22 February 2023]. AFJAL ALI SHA @ ABJAL SHAUKAT SHA v. STATE OF WEST BENGAL & ORS. [SURYA KANT, J.] permitting withdrawal from prosecution even before the date when the case was listed for prosecution evidence. 34. However, none of these patent illegalities were allowe d to sustain as a result of the pro-active exercise of appellate/revisional/writ jurisdiction by the High Court. Not only was the State Gove rnment’s notification set aside, the order passed by the Link Judge permitting such withdrawal was also annulled by the High Court. It is a matter of record that the learned Trial Judge has repeatedly decl ined bail to Respondent No. 2 and even the High Court rejected his prayer for enlargement on bail. In this factual scenario, the question arises whether it is essential to transfer the trial outside the State o f West Bengal or whether the ends of justice can be adequately met by issuing alternative appropriate directions? D. CONCLUSIONS 35. Having given our thoughtful consideration to this issue, it appears to us that there is no legal necessity to transfer the trial outside the State of West Bengal and the apprehensions of the Petitioner, some of which are indeed genuine, can be effectively redressed by issuing appropriate directions. We say so for the reason that 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 re luctant to travel to a far away place and, thus, the case of the Prosecution will be severely prejudiced. So long as the High Court and District Judiciary are ensuring the fairness in trial proceedings within their jurisdictional framework, we are not inclined to accept that the victim’s family will not get fair justice, if the trial is held in the State of West Bengal. 36. Taking into consideration all the facts and circumstances, we deem it appropriate to dispose of this transfer petition in following terms:- (i) Criminal Trial bearing ST No. 1 (03) of 2020 arising out of FIR No. 495/2019 registered at Police Station Panskura, District Purba Medinipur is ordered to be transferred from the Court of Additional Sessions Judge, 3rd Court, Tamluk, Purba Medinipur, West Bengal to the Court of Chief Judge, City Sessions Court at Calcutta. (ii) The trial shall be conducted by the Chief Judge, City Sessions Court and he shall not entrust the case to any othe r Additional Sessions Judge. 1111 (iii) The Chief Judge, City Sessions Court shall endeavour to take up the trial on a weekly basis and shall make an effort to conclude the same within a period of six months. (iv) The State of West Bengal is directed to appoint a Spec ial Public Prosecutor on the recommendations of the Chief Judge, City Sessions Court, Calcutta with the prior approval of the High Court. This exercise shall be completed within two weeks. (v) The wife of the Deceased, the Petitioner and other cruci al prosecution witnesses shall be provided adequate security. The State of West Bengal is directed to ensure that no harm is caused to the life and liberty of the witnesses and no direct or indirect attempt is made by Respondent No. 2 or his co-accused persons or anyone on their behalf to influence, frighten or threaten the witnesses. (vi) The De-facto Complainant who is also stated to be the eye- witness and has allegedly resiled from his version recorded during the examination-in-chief, shall be subjected to cross- examination by the Special Public Prosecutor, for which the advocate engaged by the Petitioner may provide assistance to the learned Special Public Prosecutor. (vii) Respondent No. 2 or any other accused who are in custody shall be transferred forthwith to the Central Jail at Calcutta. (viii) Respondent No. 2, having regard to his criminal antecedents, as well as other accused who are in custody, shall not be enlarged on bail till the conclusion of trial save and except by the High Court. (ix) The Learned Portfolio Judge of the Calcutta High Court i s requested to regularly monitor and supervise the tria l proceedings in terms of the directions issued hereinabove. 37. This transfer petition is hence, disposed of in above st ated terms. 38. Pending applications, if any, also stand disposed of accordingly. Ankit Gyan Directions issued. (Assisted by : Mahendra Yadav, LCRA) AFJAL ALI SHA @ ABJAL SHAUKAT SHA v. STATE OF WEST BENGAL & ORS. [SURYA KANT, J.]