Basic Principles to be followed to resolve conflict between two fundamental rights



Asha Ranjan
State of Bihar Ors.

Dated:FEBRUARY 15, 2017.
Citation: AIR 2017 SC 1079.

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.Page 2 132 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

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.
(2016) 9 SCC 443
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
12Page 13
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
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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
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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:-
FIR P.S. case
Under Section Status of Trial
ittal (in series)
Date of
Grant of
bail by
Period of
grant of
1 Muffasil PS
Case No.
181/98 dt
8/504 IPC
2 Year
5000/- fine
– Bail
9 by HC
0 days
2 C-2 34/05
Dt. 07.04.05
506 IPC 1 year
and Rs.1000
– Bail
9 by
3 yrs, 8
8 days
3 Muffasil PS
61/90 Dt.
363/365 IPC 3 year
– Bail
By Spl.
0 Days
4 Hussainganj
ps case
No.14/99 dt.
364/34 IPC Life
– Bail
9 by HC
3 yrs 3
5 Darauli ps
C.No. 34/96
dt: 04.05.96
307/353/34 IPC 10 years
Rs. 2000/-
9 by HC
2 yrs 1
mon 21
15Page 16
6 Hussainganj
Dt. 24.04.05
25I-B) A/26/35
Arms Act
3 Yrs
5000/- fine
– Bail
9 by HC
2 yrs 9
mon 10
7 Hussainganj
Case no.
414 IPC 25
(I-B)/26 Arms Act
5 years
5 yrs 8
mon 9
8 Muffasil ps
Case no.
Dt: 16.08.04
6 by HC
6 yrs 10
months 5
9 Hussainganj
Dt: 24.04.05
411/414 IPC 3 yrs
– Bail
9 by HC
3 yrs 11
21 days
10 Pachruhi ps
Case no.
Dt. 18.10.04
392/411 IPC This case is
merged in
ps case no.
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.
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.
Dt: 10.09.88
307 IPC 27 Arms Act
7 Siwan Town PS case no.
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
16Page 17
10 Siwan Town PS Case no.
/Dt: 22.05.94
147/148/149/324/307 IPC 27 Arms
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. 07/95
Dt; 20.01.95
143/144/427/435 IPC
14 Pachrukhi PS case 08/95 Dt;
302/34 IPC
15 Siwan Town PS caseno.
11/96 Dt: 18.01.96
341/342/323/307/34 IPC 27 Arms
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.
147/148/149/324/307/302 IPC 27
Arms Act
18 Andar PS case no. 36/96 Dt.
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
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;
392/411 IPC
5 Muffasil PS; 96/07; 02.05.07 353/506 IPC
6 Hussainganj PS; 39/05;
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
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;
379 IPC 39/44 Electricity Act
13 C-2; 27/09; 16.03.09 52 Prisoner Act 1984
17Page 18
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; 0510.11 188 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
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;
454/380 IPC
27 Siwan Town PS; 33/01;
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;
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;
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;
307 IPC 27 Arms Act
40 Hussainganj PS; 33/01;
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;
45 KMP (Muzaffarpur); 182/05 176/177/179/419/420/468/201/120-
18Page 19
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
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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
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
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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
21Page 22
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
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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
“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
23Page 24
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
(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
24Page 25
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 Administration2
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
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
(1980) 3 SCC 488
(2012) 13 SCC 192
(1978) 4 SCC 494
25Page 26
referred to in Sunil Batra (supra). The said passage reads
“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:-
26Page 27
“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 Singh5
and Maneka Gandhi6
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.”
Kharak Singh v. State of U.P. AIR 1963 SC 1295
(1978) 1 SCC 248
27Page 28
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. Ors7
“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
(1975) 3 SCC 185
28Page 29
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
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
29Page 30
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
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
30Page 31
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
31Page 32
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
32Page 33
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
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
33Page 34
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
, 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
(2014) 2 SCC 401
34Page 35
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
35Page 36
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 Gujarat9
, Abdul
Rehman Antulay v. R.S. Nayak10, Raj Deo Sharma
(2) v. State of Bihar11, Dwarka Prasad Agarwal v.
B.D. Agarwal12, K. Anbazhagan v. Supt. of Police13
Zahira Habibullah Sheikh (5) v. State of Gujarat14
Noor Aga v. State of Punjab15, Amarinder Singh v.
Parkash Singh Badal16, Mohd. Hussain v. State
(Govt. of NCT of Delhi)17, Sudevanand v. State18
Rattiram v. State of M.P.19 and Natasha Singh v.
34. In this regard, we may sit in the time machine and
refer to a three-Judge Bench judgment in Maneka Sanjay
(1989) 1 SCC 678
10 (1992) 1 SCC 225
11 (1999) 7 SCC 604
12 (2003) 6 SCC 230
13 (2004) 3 SCC 767
14 (2006) 3 SCC 374
15 (2008) 16 SCC 417
16 (2009) 6 SCC 260
17 (2012) 2 SCC 584
18 (2012) 3 SCC 387
19 (2012) 4 SCC 516
20 (2013) 5 SCC 741
36Page 37
Gandhi another v. Rani Jethmalani21, 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
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.”
21 (1979) 4 SCC 167
37Page 38
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 Singh22
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 Marwah23 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
22 (2009) 17 SCC 303
23 (2005) 4 SCC 370
38Page 39
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
24 (2010) 6 SCC 1
39Page 40
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) Delhi25 approvingly
reproduced para 33 of the earlier judgment in Zahira
Habibulla H. Sheikh v. State of Gujarat26 (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
“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
25 (2012) 9 SCC 408
26 (2004) 4 SCC 158
40Page 41
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
41Page 42
fair trial, deprivation of the right to speedy trial does not per
se prejudice the accused in defending himself. The right to
speedy trial is in its very nature relative. It depends upon
diverse circumstances. Each case of delay in conclusion of a
criminal trial has to be seen in the facts and circumstances
of such case. Mere lapse of several years since the
commencement of prosecution by itself may not justify the
discontinuance of prosecution or dismissal of indictment.
The factors concerning the accused’s right to speedy trial
have to be weighed vis-à-vis the impact of the crime on
society and the confidence of the people in judicial system.
Speedy trial secures rights to an accused but it does not
preclude the rights of public justice. The nature and gravity
of crime, persons involved, social impact and societal needs
must be weighed along with the right of the accused to
speedy trial and if the balance tilts in favour of the former
the long delay in conclusion of criminal trial should not
operate against the continuation of prosecution and if the
right of the accused in the facts and circumstances of the
case and exigencies of situation tilts the balance in his
favour, the prosecution may be brought to an end.
42Page 43
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.
27 (2015) 8 SCC 787
43Page 44
43. Recently, in State of Haryana v. Ram Mehar and
Ors.28, after analyzing the earlier judgments, the Court
ruled that the concept of the fair trial is neither in the realm
of abstraction or a vague idea. It is a concrete phenomenon;
it is not rigid and there cannot be any straitjacket formula
for applying the same. The Court observed that it cannot be
attributed or clothed with any kind of rigidity or flexibility in
its application. It is because fair trial in its ambit requires
fairness to the accused, the victim and the collective at
large. The Court ruled that neither the accused nor the
prosecution nor the victim which is a part of the society can
claim absolute predominance over the other, for once
absolute predominance is recognised, it will have the effect
potentiality to bring in an anarchical disorder in the
conducting of trial defying established legal norm. The
Court opined that whole thing would be dependent on the
fact situation; established norms and recognised principles
and eventual appreciation of the factual scenario in entirety.
There may be cases which may command
compartmentalisation but it cannot be stated to be an
inflexible rule. Each and every irregularity cannot be
28 (2016) 8 SCC 762
44Page 45
imported to the arena of fair trial. There may be situations
where injustice to the victim may play a pivotal role. The
centripodal purpose is to see that injustice is avoided when
the trial is conducted. Simultaneously the concept of fair
trial cannot be allowed to such an extent so that the
systemic order of conducting a trial in accordance with
CrPC or other enactments get mortgaged to the whims and
fancies of the defence or the prosecution. The command of
the Code cannot be thrown to the winds. In such situation,
as has been laid down in many an authority, the courts
have significantly an eminent role. A plea of fair trial cannot
be acquiesced to create an organic disorder in the system. It
cannot be acceded to manure a fertile mind to usher in the
nemesis of the concept of trial as such. The Court further
observed that there should not be any inference that the fair
trial should not be kept on its own pedestal as it ought to
remain but as far as its applicability is concerned, the party
invoking it has to establish with the support of established
principles. The process of the court cannot be abused in
the name of fair trial at the drop of a hat, as that would lead
to miscarriage of justice.
45Page 46
44. On a studied analysis of the concept of fair trial as a
facet of Article 21, it is noticeable that in its ambit and
sweep it covers interest of the accused, prosecution and the
victim. The victim, may be a singular person, who has
suffered, but the injury suffered by singular is likely to
affect the community interest. Therefore, the collective
under certain circumstances and in certain cases, assume
the position of the victim. They may not be entitled to
compensation as conceived under section 357A of the CrPC
but their anxiety and concern of the crime and desire to
prevent such occurrences and that the perpetrator, if guilty,
should be punished, is a facet of Rule of Law. And that has
to be accepted and ultimately protected.
45. It is settled in law that the right under Article 21 is not
absolute. It can be curtailed in accordance with law. The
curtailment of the right is permissible by following due
procedure which can withstand the test of reasonableness.
Submission that if the accused is transferred from jail in
Siwan to any other jail outside the State of Bihar, his right
to fair trial would be smothered and there will be an
inscription of an obituary of fair trial and refutation of the
46Page 47
said proponement, that the accused neither has monopoly
over the process nor does he has any exclusively absolute
right, requires a balanced resolution. The opposite
arguments are both predicated on the precept of fair trial
and the said scale would decide this controversy. The
interest of the victim is relevant and has to be taken into
consideration. The contention that if the accused is not
shifted out of Siwan Jail, the pending trials would result in
complete farce, for no witness would be in a position to
depose against him and they, in total haplessness, shall be
bound to succumb to the feeling of accentuated fear that is
created by his unseen tentacles, is not an artifice and
cannot be ignored. In such a situation, this Court should
balance the rights between the accused and the victims and
thereafter weigh on the scale of fair trial whether shifting is
necessary or not. It would be travesty if we ignore the
assertion that if the respondent No. 3 is not shifted from
Siwan Jail and the trial is held at Siwan, justice, which is
necessitous to be done in accordance with law, will suffer an
unprecedented set back and the petitioners would remain in
47Page 48
a constant state of fear that shall melt their bones. This
would imply balancing of rights.
46. Having noted thus, as presently advised, we shall first
advert to certain authorities that pertain to balancing of
rights. In Sakal Paper (P) Ltd. Ors v. Union of India
another29, the Court in the context of freedom of speech
and expression, has held that freedom of speech can be
restricted only in the interests of the security of the State,
friendly relations with foreign State, public order, decency or
morality or in relation to contempt of court, defamation or
incitement to an offence. It cannot, like the freedom to carry
on business, be curtailed in the interest of the general
public. Analysing further, the Court held:-
“It follows from this that the State cannot make a
law which directly restricts one freedom even for
securing the better enjoyment of another
freedom. All the greater reason, therefore for
holding that the State cannot directly restrict one
freedom by placing an otherwise permissible
restriction on another freedom.”
47. In Subramanian Swamy v. Union of India30 the
Court after referring to the said authority ruled that:-
“… the issue herein is sustenance and balancing
of the separate rights, one under Article 19(1)(a)
29 AIR 1962 SC 305
30 (2016) 7 SCC 221
48Page 49
and the other, under Article 21. Hence, the
concept of equipoise and counterweighing
fundamental rights of one with other person. It is
not a case of mere better enjoyment of another
freedom. In Acharya Maharajshri Narendra
Prasadji Anandprasadji Maharaj v. State of
Gujarat31, it has been observed that a particular
fundamental right cannot exist in isolation in a
watertight compartment. One fundamental right
of a person may have to coexist in harmony with
the exercise of another fundamental right by
others and also with reasonable and valid
exercise of power by the State in the light of the
directive principles in the interests of social
welfare as a whole. The Court’s duty is to strike a
balance between competing claims of different
interests. In DTC v. Mazdoor Congress32 the Court
has ruled that articles relating to fundamental
rights are all parts of an integrated scheme in the
Constitution and their waters must mix to
constitute that grand flow of unimpeded and
impartial justice; social, economic and political,
and of equality of status and opportunity which
imply absence of unreasonable or unfair
discrimination between individuals or groups or
48. In this context, it is also appropriate to refer to
certain other decisions where the Court has dealt with
the concept of competing rights. We are disposed to
think that dictum laid therein has to be appositely
appreciated. In Mr. ‘X’ v. Hospital ‘Z’33, the issue arose
with regard to right to privacy as implicit in the right to
31 (1975) 1 SCC 11
32 1991 Supp (1) SCC 600
33 (1998) 8 SCC 296
49Page 50
life and liberty as guaranteed to the citizens under Article
21 of the Constitution and the right of another to lead a
healthy life. Dealing with the said controversy, the Court
held as a human being, Ms ‘Y’ must also enjoy, as she
obviously is entitled to, all the human rights available to
any other human being. This is apart from, and in
addition to, the fundamental right available to her under
Article 21, which guarantees “right to life” to every citizen
of this country. The Court further held that where there
is a clash of two fundamental rights, namely, the
appellant’s right to privacy as part of right to life and Ms
‘Y’s right to lead a healthy life which is her fundamental
right under Article 21, the right which would advance the
public morality or public interest, would alone be
enforced through the process of court, for the reason that
moral considerations cannot be kept at bay and the
Judges are not expected to sit as mute structures of clay
in the hall known as the courtroom, but have to be
49. The aforesaid decision is an authority for the
proposition that there can be a conflict between two
individuals qua their right under Article 21 of the
Constitution and in such a situation, to weigh the
balance the test that is required to be applied is the test
of larger public interest and further that would, in certain
circumstances, advance public morality of the day. To
put it differently, the “greater community interest” or
“interest of the collective or social order” would be the
principle to recognize and accept the right of one which
has to be protected.
50. In this context, reference to the pronouncement in
Rev. Stainislaus v. State of M.P. and Ors.34 would be
instructive. In the said case, the Constitution Bench was
dealing with two sets of appeals, one arising from
Madhya Pradesh that related to Madhya Pradesh Dharma
Swatantraya Adhiniyam, 1968 and the other pertained to
Orissa Freedom of Religion Act, 1967. The two Acts
insofar as they were concerned with prohibition of
forcible conversion and punishment therefor, were
similar. The larger Bench stated the facts from Madhya
Pradesh case which eventually travelled to the High
Court. The High Court ruled that that there was no
34 (1977) 1 SCC 677
justification for the argument that Sections 3, 4 and 5
were violative of Article 25(1) of the Constitution. The
High Court went on to hold that those Sections “establish
the equality of religious freedom for all citizens by
prohibiting conversion by objectionable activities such as
conversion by force, fraud and by allurement”. The
Orissa Act was declared to be ultra vires the Constitution
by the High Court. To understand the controversy, the
Court posed the following questions:-
“(1) whether the two Acts were violative of the
fundamental right guaranteed under Article 25(1)
of the Constitution, and
(2) whether the State Legislatures were
competent to enact them?”
51. It was contended before this Court that the right to
propagate one’s religion means the right to convert a
person to one’s own religion and such a right is
guaranteed by Article 25(1) of the Constitution. The
larger Bench dealing with the said contention held:-
“We have no doubt that it is in this sense that the
word ‘propagate’ has been used in Article 25(1),
for what the article grants is not the right to
convert another person to one’s own religion, but
to transmit or spread one’s religion by an
exposition of its tenets. It has to be remembered
that Article 25(1) guarantees “freedom of
conscience” to every citizen, and not merely to
the followers of one particular religion, and that,
in turn postulates that there is no fundamental
right to convert another person to one’s own
religion because if a person purposely undertakes
the conversion of another person to his religion,
as distinguished from his effort to transmit or
spread the tenets of his religion, that would
impinge on the “freedom of conscience”
guaranteed to all the citizens of the country
And again:-
“It has to be appreciated that the freedom of
religion enshrined in the article is not guaranteed
in respect of one religion only, but covers all
religions alike, and it can be properly enjoyed by
a person if he exercises his right in a manner
commensurate with the like freedom of persons
following the other religions. What is freedom for
one, is freedom for the other, in equal measure,
and there can therefore be no such thing as a
fundamental right to convert any person to one’s
own religion.”
52. The aforesaid judgment clearly lays down, though in a
different context, that what is freedom for one is also the
freedom for the other in equal measure. The perception is
explicated when the Court has said that it has to be
remembered that Article 25(1) guarantees freedom of
conscience to other citizens and not merely to followers of
particular religion and there is no fundamental right to
convert another person. The right is guaranteed to all
citizens. The right to propagate or spread one’s religion by
an exposition of its tenets does not mean one’s religion to
convert another person as it affects the fundamental right of
the other. We have referred to this authority as it has, in a
way, dwelt upon the “intra-conflict of a fundamental right”.
53. Be it stated, circumstances may emerge that may
necessitate for balancing between intra-fundamental rights.
It has been distinctly understood that the test that has to be
applied while balancing the two fundamental rights or inter
fundamental rights, the principles applied may be different
than the principle to be applied in intra-conflict between the
same fundamental right. To elaborate, as in this case, the
accused has a fundamental right to have a fair trial under
Article 21 of the Constitution. Similarly, the victims who
are directly affected and also form a part of the constituent
of the collective, have a fundamental right for a fair trial.
Thus, there can be two individuals both having legitimacy to
claim or assert the right. The factum of legitimacy is a
primary consideration. It has to be remembered that no
fundamental right is absolute and it can have limitations in
certain circumstances. Thus, permissible limitations are
imposed by the State. The said limitations are to be within
the bounds of law. However, when there is intra-conflict of
the right conferred under the same Article, like fair trial in
this case, the test that is required to be applied, we are
disposed to think, it would be “paramount collective
interest” or “sustenance of public confidence in the justice
dispensation system”. An example can be cited. A group of
persons in the name of “class honour”, as has been stated
in Vikas Yadav v. State of U.P. Ors., cannot curtail or
throttle the choice of a woman. It is because choice of
woman in choosing her partner in life is a legitimate
constitutional right. It is founded on individual choice that
is recognized in the Constitution under Article 19, and such
a right is not expected to succumb to the concept of “class
honour” or “group thinking”. It is because the sense of
class honour has no legitimacy even if it is practised by the
collective under some kind of a notion. Therefore, if the
collective interest or the public interest that serves the
public cause and further has the legitimacy to claim or
assert a fundamental right, then only it can put forth that
35 (2016) 9 SCC 541
their right should be protected. There can be no denial of
the fact that the rights of the victims for a fair trial is an
inseparable aspect of Article 21 of the Constitution and
when they assert that right by themselves as well as the
part of the collective, the conception of public interest gets
galvanised. The accentuated public interest in such
circumstances has to be given primacy, for it furthers and
promotes “Rule of Law”. It may be clarified at once that the
test of primacy which is based on legitimacy and the public
interest has to be adjudged on the facts of each case and
cannot be stated in abstract terms. It will require studied
scanning of facts, the competing interests and the ultimate
perception of the balancing that would subserve the larger
public interest and serve the majesty of rule of law. In this
regard, we are reminded of an ancient saying:-
“yadapi siddham, loka viruddham
Na adaraniyam, na acharaniyam”
The aforesaid saying lays stress on public interest and
its significance and primacy over certain individual interest.
It may not thus have general application, but the purpose of
referring to the same is that on certain occasions it can be
treated to be appropriate.
54. There may be a perception that if principle of primacy
is to be followed, then the right of one gets totally
extinguished. It has to be borne in mind that total
extinction is not balancing. When balancing act is done, the
right to fair trial is not totally crippled, but it is curtailed to
some extent by which the accused gets the right of fair trial
and simultaneously, the victims feel that the fair trial is
conducted and the court feels assured that there is a fair
trial in respect of such cases. That apart, the faith of the
collective is reposed in the criminal justice dispensation
system and remains anchored.
55. While appreciating the concept of public interest in
such a situation, the Court is required to engage itself in
construing the process of fair trial which ultimately
subserves the cause of justice and remains closer to
constitutional sensibility. An accused, in the name of fair
trial, cannot go on seeking adjournments defeating the basic
purpose behind the conducting of a trial as enshrined under
Section 309 CrPC. He cannot go on filing applications
under various provisions of CrPC, whether tenable or not,
and put forth a plea on each and every occasion on the
bedrock that principle of fair trial sanctions it. In such a
situation, as has been held by this Court, the prosecution
which represents the cause of collective and the victim, who
fights for remedy of his individual grievance, is allowed to
have a say and the court is not expected to be a silent
spectator. Thus, the discord that arises when there is
intra-conflict in the same fundamental right especially, in
the context of fair trial, it has to be resolved regard being
had to the obtaining fact situation. An accused who has
been able to, by his sheer presence, erode the idea of safety
of a witness in court or for that matter impairs and rusts
the faith of a victim in the ultimate justice and such erosion
is due to fear psychosis prevalent in the atmosphere of trial,
is not to be countenanced as it is an unconscionable
situation. Such a hazard is not to be silently suffered
because the “Majesty of Justice” does not allow such kinds
of complaints to survive. Thus analysed, the submission of
Mr. Naphade that shifting of the accused outside the Siwan
Jail would affect his right under Article 21 of the
Constitution does not commend acceptation.
56. The next limb of controversy relates to exercise of
power and jurisdiction. The plea that is propounded by Mr.
Naphade is that in the absence of any provision in the 1950
Act, there cannot be any direction for shifting. According to
him, any State action which prejudices the right of an
individual has to be backed by the authority of law and in
the absence of law, such an order is not permissible. In this
regard, he has drawn inspiration from a passage from the
State of M.P. another v. Thakur Bharat Singh36. It
reads as follows:-
“All executive action which operates to the
prejudice of any person must have the authority
of law to support it, and the terms of Article 358
do not detract from that rule. Article 358
expressly authorises the State to take legislative
or executive action provided such action was
competent for the State to make or take, but for
the provisions contained in Part III of the
Constitution. Article 358 does not purport to
invest the State with arbitrary authority to take
action to the prejudice of citizens and others: it
merely provides that so long as the proclamation
of emergency subsists laws may be enacted, and
exclusive action may be taken in pursuance of
lawful authority, which if the provisions of Article
19 were operative would have been invalid.”
36 AIR 1967 SC 1170
57. The aforesaid contention has a fundamental fallacy
and, therefore, the authority in Thakur Bharat Singh
(supra) has no application. In the case at hand, no State
action is under challenge. The plea of prejudice that has
been advanced has no legs to stand upon as the petitioners
have approached this Court for directions. It is well settled
in law that there is a distinction between a judicial function
and the legislative action, and similarly the executive action
and a direction from the Court. It has been lucidly clarified
by the Constitution Bench in State of W.B. Ors v.
Committee for Protection of Democratic Rights, West
Bengal Ors37. The question arose in the said case was
whether the High Court in exercise of jurisdiction under
Article 226 of the Constitution can direct the CBI
established under the Delhi Special Police Establishment
Act, 1946 (for short, ‘Special Police Act’) to investigate a
cognizable offence which is alleged to have taken place
within the territorial jurisdiction of a State without the
consent of the State Government. After referring to various
provisions of the Special Police Act, the Court posed the
question “whether the restrictions imposed on the powers of
37 (2010) 3 SCC 571
the Central Government would apply mutatis mutandis to
constitutional courts as well” and referring to various
authorities, recorded number of conclusions, of which we
reproduce the relevant ones:-
“(i) The fundamental rights, enshrined in Part III
of the Constitution, are inherent and cannot be
extinguished by any constitutional or statutory
provision. Any law that abrogates or abridges
such rights would be violative of the basic
structure doctrine. The actual effect and impact
of the law on the rights guaranteed under Part III
has to be taken into account in determining
whether or not it destroys the basic structure.
(ii) Article 21 of the Constitution in its broad
perspective seeks to protect the persons of their
lives and personal liberties except according to
the procedure established by law. The said article
in its broad application not only takes within its
fold enforcement of the rights of an accused but
also the rights of the victim. The State has a duty
to enforce the human rights of a citizen providing
for fair and impartial investigation against any
person accused of commission of a cognizable
offence, which may include its own officers. In
certain situations even a witness to the crime
may seek for and shall be granted protection by
the State.
(iii) In view of the constitutional scheme and the
jurisdiction conferred on this Court under Article
32 and on the High Courts under Article 226 of
the Constitution the power of judicial review
being an integral part of the basic structure of
the Constitution, no Act of Parliament can
exclude or curtail the powers of the constitutional
courts with regard to the enforcement of
61Page 62
fundamental rights. As a matter of fact, such a
power is essential to give practicable content to
the objectives of the Constitution embodied in
Part III and other parts of the Constitution.
Moreover, in a federal constitution, the
distribution of legislative powers between
Parliament and the State Legislature involves
limitation on legislative powers and, therefore,
this requires an authority other than Parliament
to ascertain whether such limitations are
transgressed. Judicial review acts as the final
arbiter not only to give effect to the distribution of
legislative powers between Parliament and the
State Legislatures, it is also necessary to show
any transgression by each entity. Therefore, to
borrow the words of Lord Steyn, judicial review is
justified by combination of “the principles of
separation of powers, rule of law, the principle of
constitutionality and the reach of judicial review”.
(iv) If the federal structure is violated by any
legislative action, the Constitution takes care to
protect the federal structure by ensuring that the
Courts act as guardians and interpreters of the
Constitution and provide remedy under Articles
32 and 226, whenever there is an attempted
violation. In the circumstances, any direction by
the Supreme Court or the High Court in exercise
of power under Article 32 or 226 to uphold the
Constitution and maintain the rule of law cannot
be termed as violating the federal structure.
(v) Restriction on Parliament by the Constitution
and restriction on the executive by Parliament
under an enactment, do not amount to
restriction on the power of the Judiciary under
Articles 32 and 226 of the Constitution.”
And eventually, the Court answered the reference
62Page 63
“In the final analysis, our answer to the question
referred is that a direction by the High Court, in
exercise of its jurisdiction under Article 226 of
the Constitution, to CBI to investigate a
cognizable offence alleged to have been
committed within the territory of a State without
the consent of that State will neither impinge
upon the federal structure of the Constitution nor
violate the doctrine of separation of power and
shall be valid in law. Being the protectors of civil
liberties of the citizens, this Court and the High
Courts have not only the power and jurisdiction
but also an obligation to protect the fundamental
rights, guaranteed by Part III in general and
under Article 21 of the Constitution in particular,
zealously and vigilantly.”
58. The aforesaid decision compels us to repel the
submission of Mr. Naphade on this score which is to the
effect that when no power is conferred under the 1950 Act,
the Court cannot exercise the power or when the power is
curtailed, the Court cannot issue directions. The
controversy in the Constitution Bench pertained to direction
by the High Court to transfer the investigation to the CBI in
respect of the crime that occurs within the territory of the
State and this Court held that the High Court has the
authority to so direct despite the prohibition contained in
the Special Police Act. Therefore, the non-conferment of
power under the 1950 Act would not prohibit the High
63Page 64
Court, in exercise of its power under Article 226 to transfer
a case from one jail to another inside the State depending
upon the circumstances.
59. The question that arises in the case at hand pertains
to exercise of jurisdiction under Articles 32, 142 and 144 of
the Constitution. It is submitted by Mr. Naphade that an
order under Article 142 cannot be passed in violation of the
rights under Part III of the Constitution nor such an order
can be inconsistent with the substantive provisions of the
relevant statute. He has drawn our attention to the
Constitution Bench decision in Prem Chand Garg
another v. Excise Commr.38 In the said case, the majority
ruled that:-
“12. ….. The powers of this Court are no doubt
very wide and they are intended to be and will
always be exercised in the interest of justice. But
that is not to say that an order can be made by
this Court which is inconsistent with the
fundamental rights guaranteed by Part III of the
Constitution. An order which this Court can
make in order to do complete justice between the
parties, must not only be consistent with the
fundamental rights guaranteed by the
Constitution, but it cannot even be inconsistent
with the substantive provisions of the relevant
statutory laws. Therefore, we do not think it
would be possible to hold that Article 142(1)
38 AIR 1963 SC 996
64Page 65
confers upon this Court powers which can
contravene the provisions of Article 32.”
60. Placing reliance on A.R. Antulay v. R.S. Nayak
another39, Mr. Naphade would urge that the court cannot
pass an order in exercise of jurisdiction under Article 142 of
the Constitution which will affect the fundamental right of a
person. In Antulay’s case, the five-Judge Bench in R.S.
Nayak v. A.R. Antulay40, had transferred the case from
Special Court under the Prevention of Corruption Act to the
High Court in order to expedite the trial. In doing so, as felt
by the later judgment rendered by seven Judges, the Court
had ignored the mandatory provision of Section 7(2) of the
Criminal Law Amendment Act, 1952 and, therefore, two
rights of Antulay were violated, one, the accused could only
be tried by a Special Judge and secondly, he had a right of
statutory appeal to the High Court. The Court ruled that
there was breach of fundamental rights under Articles 14
and 21 of the Constitution. While elucidating the principle
under Article 142, Sabyasachi Mukharji, J. (as His Lordship
then was) ruled:-
39 (1988) 2 SCC 602
40 (1984) 2 SCC 183
65Page 66
“The fact that the rule was discretionary did not
alter the position. Though Article 142(1)
empowers the Supreme Court to pass any order
to do complete justice between the parties, the
court cannot make an order inconsistent with the
fundamental rights guaranteed by Part III of the
Constitution. No question of inconsistency
between Article 142(1) and Article 32 arose.
Gajendragadkar, J., speaking for the majority of
the judges of this Court said that Article 142(1)
did not confer any power on this Court to
contravene the provisions of Article 32 of the
Constitution. Nor did Article 145 confer power
upon this Court to make rules, empowering it to
contravene the provisions of the fundamental
right. At page 899 of the Reports,
Gajendragadkar, J., reiterated that the powers of
this Court are no doubt very wide and they are
intended and “will always be exercised in the
interests of justice”. But that is not to say that an
order can be made by this Court which is
inconsistent with the fundamental rights
guaranteed by Part III of the Constitution. It was
emphasised that an order which this Court could
make in order to do complete justice between the
parties, must not only be consistent with the
fundamental rights guaranteed by the
Constitution, but it cannot even be inconsistent
with the substantive provisions of the relevant
statutory laws (emphasis supplied). The court
therefore, held that it was not possible to hold
that Article 142(1) conferred upon this Court
powers which could contravene the provisions of
Article 32.”
61. Relying on the aforesaid dictum, it is canvassed by Mr.
Naphade that when the transfer of an accused from one
State to another is not envisaged under the 1950 Act, and
the concept of fair trial commands that an accused has to
66Page 67
be tried fairly and should not be removed to a distant place
where he would feel isolated and cut-off from his relations
and familiar milieu, for it would tantamount to violation of
the right as enshrined under Article 21 of the Constitution.
He would further contend that power under Article 142
cannot be exercised that would create a dent in the
fundamental right or would be inconsistent with the
statutory provisions. Controverting the aforesaid
submission, Mr. Bhushan, learned senior counsel for the
petitioners has drawn our attention to a Constitution Bench
judgment in Union Carbide Corporation (supra). In
paragraph 83, M.N. Venkatachaliah, J, (as His Lordship
then was) speaking for the majority, opined thus:-
“It is necessary to set at rest certain
misconceptions in the arguments touching the
scope of the powers of this Court under Article
142(1) of the Constitution. These issues are
matters of serious public importance. The
proposition that a provision in any ordinary law
irrespective of the importance of the public policy
on which it is founded, operates to limit the
powers of the apex Court under Article 142(1) is
unsound and erroneous. In both Garg as well as
Antulay cases the point was one of violation of
constitutional provisions and constitutional
rights. The observations as to the effect of
inconsistency with statutory provisions were
really unnecessary in those cases as the
decisions in the ultimate analysis turned on the
67Page 68
breach of constitutional rights. We agree with
Shri Nariman that the power of the Court under
Article 142 insofar as quashing of criminal
proceedings are concerned is not exhausted by
Section 320 or 321 or 482 CrPC or all of them
put together. The power under Article 142 is at
an entirely different level and of a different
quality. Prohibitions or limitations or provisions
contained in ordinary laws cannot, ipso facto, act
as prohibitions or limitations on the
constitutional powers under Article 142. Such
prohibitions or limitations in the statutes might
embody and reflect the scheme of a particular
law, taking into account the nature and status of
the authority or the court on which conferment of
powers — limited in some appropriate way — is
contemplated. The limitations may not
necessarily reflect or be based on any
fundamental considerations of public policy. Sri
Sorabjee, learned Attorney General, referring to
Garg case, said that limitation on the powers
under Article 142 arising from “inconsistency
with express statutory provisions of substantive
law” must really mean and be understood as
some express prohibition contained in any
substantive statutory law. He suggested that if
the expression ‘prohibition’ is read in place of
‘provision’ that would perhaps convey the
appropriate idea. But we think that such
prohibition should also be shown to be based on
some underlying fundamental and general issues
of public policy and not merely incidental to a
particular statutory scheme or pattern. It will
again be wholly incorrect to say that powers
under Article 142 are subject to such express
statutory prohibitions. That would convey the
idea that statutory provisions override a
constitutional provision. Perhaps, the proper way
of expressing the idea is that in exercising powers
under Article 142 and in assessing the needs of
“complete justice” of a cause or matter, the apex
Court will take note of the express prohibitions in
68Page 69
any substantive statutory provision based on
some fundamental principles of public policy and
regulate the exercise of its power and discretion
accordingly. The proposition does not relate to
the powers of the Court under Article 142, but
only to what is or is not ‘complete justice’ of a
cause or matter and in the ultimate analysis of
the propriety of the exercise of the power. No
question of lack of jurisdiction or of nullity can
arise”. [Emphasis supplied]
62. It is urged by Mr. Naphade that the said judgment is
per incuriam as it runs counter to what has been stated in
Antulay (supra). Suffice it to say, we are bound by the view
expressed in Union Carbide Corporation (supra) which
has appreciated the ratio of Antulay’s case in a particular
manner. That apart, we have no hesitation in stating that
what has been stated in Union Carbide Corporation
(supra) by Venkatachaliah, J. is in accord with the
constitutional scheme of justice.
63. Mr. Naphade, learned senior counsel has also drawn
our attention to a Constitution Bench decision in Supreme
Court Bar Association v. Union of India and Anr.41. In
the said case, the Court dealing with the plenary power
under Article 142 of the Constitution opined that the
plenary powers of this Court under Article 142 of the
Constitution are inherent in the Court and are
41 (1998) 4 SCC 409
69Page 70
complementary to those powers which are specifically
conferred on the Court by various statutes though are not
limited by those statutes. These powers also exist
independent of the statutes with a view to do complete
justice between the parties. These powers are of very wide
amplitude and are in the nature of supplementary powers.
This power exists as a separate and independent basis of
jurisdiction apart from the statutes. It stands upon the
foundation and the basis for its exercise may be put on a
different and perhaps even wider footing, to prevent
injustice in the process of litigation and to do complete
justice between the parties. This plenary jurisdiction is,
thus, the residual source of power which this Court may
draw upon as necessary whenever it is just and equitable to
do so and in particular to ensure the observance of the due
process of law, to do complete justice between the parties,
while administering justice according to law. Thereafter, the
Court held:-
“There is no doubt that it is an indispensable
adjunct to all other powers and is free from the
restraint of jurisdiction and operates as a valuable
weapon in the hands of the Court to prevent
“clogging or obstruction of the stream of justice”. It,
however, needs to be remembered that the powers
70Page 71
conferred on the Court by Article 142 being curative
in nature cannot be construed as powers which
authorise the Court to ignore the substantive rights
of a litigant while dealing with a cause pending
before it. This power cannot be used to “supplant”
substantive law applicable to the case or cause
under consideration of the Court. Article 142, even
with the width of its amplitude, cannot be used to
build a new edifice where none existed earlier, by
ignoring express statutory provisions dealing with a
subject and thereby to achieve something indirectly
which cannot be achieved directly….”
64. The Court thereafter referred to the authorities in
Delhi Judicial Service Association v. State of Gujarat
ors42, Re, Vinay Chandra Mishra43, Prem Chand Garg
(supra), and Union Carbide Corporation (supra), specially
para 83 of the last decision and proceeded to rule thus:-
“55. Thus, a careful reading of the judgments in
Union Carbide Corpn. v. Union of India; the Delhi
Judicial Service Assn. case (supra) and Mohd. Anis
case44 relied upon in V.C. Mishra case (supra) show
that the Court did not actually doubt the
correctness of the observations in Prem Chand Garg
case (supra). As a matter of fact, it was observed
that in the established facts of those cases, the
observations in Prem Chand Garg case had “no
relevance”. This Court did not say in any of those
cases that substantive statutory provisions dealing
expressly with the subject can be ignored by this
Court while exercising powers under Article 142.
42 (1991) 4 SCC 406
43 (1995) 2 SCC 584
44 1994 Supp. (1) SCC 145
71Page 72
56. As a matter of fact, the observations on which
emphasis has been placed by us from the Union
Carbide case , A.R. Antulay case and Delhi Judicial
Service Assn. case go to show that they do not
strictly speaking come into any conflict with the
observations of the majority made in Prem Chand
Garg case. It is one thing to say that “prohibitions
or limitations in a statute” cannot come in the way
of exercise of jurisdiction under Article 142 to do
complete justice between the parties in the pending
“cause or matter” arising out of that statute, but
quite a different thing to say that while exercising
jurisdiction under Article 142, this Court can
altogether ignore the substantive provisions of a
statute, dealing with the subject and pass orders
concerning an issue which can be settled only
through a mechanism prescribed in another statute.
This Court did not say so in Union Carbide case
(supra) either expressly or by implication and on
the contrary it has been held that the Apex Court
will take note of the express provisions of any
substantive statutory law and regulate the exercise
of its power and discretion accordingly. …”
[emphasis added]
65. In this context, we may refer with profit to a two-Judge
Bench decision in Narendra Champaklal Trivedi v. State
of Gujarat45. In the said case, question arose with regard to
reduction of sentence that had been imposed under Section
13(3) of the Prevention of Corruption Act, 1988. The Court
referred to the earlier decisions in Vishweshwaraiah Iron
Steel Ltd. v. Abdul Gani Ors46
, Keshabhai
45 (2012) 7 SCC 80
46 (1997) 8 SCC 713
72Page 73
Malabhai Vankar v. State of Gujarat47, Laxmidas
Morarji v. Behrose Darab Madan48 and held thus:-
“… where the minimum sentence is provided, we
think it would not be at all appropriate to exercise
jurisdiction under Article 142 of the Constitution of
India to reduce the sentence on the ground of the
so-called mitigating factors as that would
tantamount to supplanting statutory mandate and
further it would amount to ignoring the substantive
statutory provision that prescribes minimum
sentence for a criminal act relating to demand and
acceptance of bribe. The amount may be small but
to curb and repress this kind of proclivity the
legislature has prescribed the minimum sentence. It
should be paramountly borne in mind that
corruption at any level does not deserve either
sympathy or leniency. In fact, reduction of the
sentence would be adding a premium. The law does
not so countenance and, rightly so, because
corruption corrodes the spine of a nation and in the
ultimate eventuality makes the economy sterile.”
Thus, the Bench did not think it apt to ignore the
substantive statutory provisions.
66. In this regard, we may also refer to the authority in
Shamsu Suhara Beevi v. G. Alex and another49. In the
said case, the Court was dealing with a lis that pertained to
an agreement of sale. There was no prayer for amendment
of the plaint to include the relief of compensation for breach
47 1995 Supp. (3) SCC 704
48 (2009) 10 SCC 425
49 (2004) 8 SCC 569
73Page 74
of contract in addition to the specific performance of the
agreement. The relief was claimed under Section 28 of the
Specific Relief Act, 1963 but not under Section 21 of that
Act. The High Court came to the conclusion that Section
28 would not be applicable to the facts of the case but
granted relief under Section 21 of the said Act. In that
context, the Court ruled that the High Court would not have
granted compensation under Section 21 in addition to the
relief of specific performance in the absence of a prayer
made to that effect either in the plaint or amending the
same at any later stage of the proceedings to include the
relief of compensation in addition to the relief of specific
performance; that grant of such a relief in the teeth of
express provisions of the statute to the contrary is not
permissible; that on equitable considerations court cannot
ignore or overlook the provisions of the statute, and that
equity must yield to law.
67. In the context of the aforesaid authorities, the
submission of Mr. Naphade is to be appreciated. It is
canvassed by him that Section 3 of the 1950 Act permits
transfer of a prisoner outside the State under certain
74Page 75
circumstances and, therefore, no other circumstance can be
visualized while exercising power under Article 142 of the
Constitution as that will be running counter to the
substantive provisions of the statute. He further submits
that this Court cannot legislate under Article 142 and equity
must yield to the provisions of law.
68. There can be no doubt that equity cannot override law.
As far as the first aspect is concerned, we need not advert to
the broad platform on which Mr. Naphade has based his
contention. Suffice it to note that Section 3 of the 1950 Act
bestows power on the State Government to transfer an
accused to another State after consulting the other State.
Such an action by the State has to be totally controlled by
the circumstances which find mention under Section 3.
When the State passes an order with the concurrence of
another State, it is obliged to be bound by the
circumstances which are postulated under Section 3(1) of
the 1950 Act, but when the issue of fair trial emerges before
the constitutional court, Section 3 of the 1950 Act cannot be
regarded so as to restrain the court from what is mandated
and required for a free and fair trial. The statutory power is
75Page 76
not such which is negative and curtails power of the court
to act in the interest of justice, and ensure free and fair
trial, which is of paramount importance for the Rule of Law.
It only controls the power of the executive. Therefore, we are
unable to accept the submission of Mr. Naphade in this
69. Presently, we shall advert to the facts which we have
stated in the beginning. The third respondent has already
been declared as a history-sheeter type ‘A’, that is, who is
beyond reform. Till today, he has been booked in 75 cases,
out of which he had been convicted in 10 cases and
presently facing trial in 45 cases. There is no dispute that
he has been acquitted in 20 cases. Out of 45 cases, 21
cases are those where maximum sentence is 7 years or
more. He has been booked in 15 cases where he has been in
custody and one such case relates to the murder of the
third son of the petitioner and other two cases are of
attempt to murder. He is an influential person of the
locality, for he has been a representative to the Legislative
Assembly on two occasions and elected as a Member of
Parliament four times. This is not a normal and usual case.
76Page 77
It has to be dealt with in the aforesaid factual matrix. A
history-sheeter has criminal antecedents and sometimes
becomes a terror in society. In Neeru Yadav v. State of
U.P. and Anr.50, this Court, while cancelling bail granted to
a history-sheeter, was compelled to observe:-
“16. ….A democratic body polity which is wedded
to the rule of law, anxiously guards liberty. But, a
pregnant and significant one, the liberty of an
individual is not absolute. Society by its collective
wisdom through process of law can withdraw the
liberty that it has sanctioned to an individual
when an individual becomes a danger to the
collective and to the societal order. Accent on
individual liberty cannot be pyramided to that
extent which would bring chaos and anarchy to a
society. A society expects responsibility and
accountability from its members, and it desires
that the citizens should obey the law, respecting
it as a cherished social norm. No individual can
make an attempt to create a concavity in the stem
of social stream. It is impermissible. Therefore,
when an individual behaves in a disharmonious
manner ushering in disorderly things which the
society disapproves, the legal consequences are
bound to follow. At that stage, the court has a
duty. It cannot abandon its sacrosanct obligation
and pass an order at its own whim or caprice. It
has to be guided by the established parameters of
We have referred to the aforesaid authority to highlight
how the Court has taken into consideration the
paramountcy of peaceful social order while cancelling the
50 (2014) 16 SCC 508
77Page 78
order of bail, for the order granting bail was passed without
proper consideration of criminal antecedents of the accused
whose acts created a concavity in the social stream.
70. Mr. Bhushan, learned senior counsel heavily relied on
the authority in Kalyan Chandra Sarkar v. Rajesh
Ranjan alias Pappu Yadav and another51. It is urged by
him that factual matrix in the said case and the present
case is identical. In the said case, the Court noticed that
the respondent therein, Rajesh Ranjan alias Pappu Yadav
while he was in judicial custody, was found addressing an
election meeting. The Court called for a report from the
authorities concerned requiring them to explain on what
authority the said respondent was allowed to address a
public meeting. The report filed by the CBI revealed that the
respondent, in collusion with the police authorities
accompanying him to Madhepura, had addressed a public
meeting and the escort accompanying him took him to
various places which the respondent wanted to visit beyond
the scope of the production warrant. It had come to the
knowledge of the Court that though his bail had been
cancelled, the accused was never taken into jail and, in fact,
51 (2005) 3 SCC 284
78Page 79
when he was arrested after the cancellation of bail, he was
taken to Patna and an urgent Medical Board was
constituted to examine him which opined that the accused
required medical treatment at Patna Medical College and
permitted him to stay in the said Medical College. Taking
various other facts into consideration, the Court opined that
the respondent had absolutely no respect for the Rule of
Law nor was he, in any manner, afraid of the consequences
of his unlawful acts. It was also observed that, it was
evident from the fact that some of the illegal acts of the
respondent were committed even when his application for
grant of bail was pending. When the issue of transfer from
Beur Jail, Patna to a jail outside the State arose, a
contention was advanced that it would affect his
fundamental right as has been enunciated in Sunil Batra
(II) (supra). The Court referred to Section 3 of the 1950 Act
and in that context, opined that in an appropriate case,
such request can also be made by an undertrial prisoner or
a detenu and there being no statutory provisions contrary
thereto, this Court in exercise of its jurisdiction under
79Page 80
Article 142 of the Constitution may issue necessary
71. The two-Judge Bench referred to the authorities in
Supreme Court Bar Association (supra) and Union
Carbide Corporation (supra) and ruled thus:-
“29. Despite some criticisms in some quarters as
regards the correctness of the decision in Union
Carbide (supra) we may notice that in Mohd. Anis v.
Union of India (supra) it was held that the power of
the Supreme Court under Article 142(1) cannot be
diluted by Section 6 of the Delhi Special Police
Establishment Act, 1946.”
72. The Court, thereafter, referred to the authorities in
State of Karnataka v. State of A.P. Ors52
, State of
W.B. Ors v. Sampat Lal Ors53 Ashok Kumar Gupta
another v. State of U.P. Ors54 and eventually
“43. It is true that in a normal trial the Criminal
Procedure Code requires the accused to be present
at the trial but in the peculiar circumstances of this
case a procedure will have to be evolved, which will
not be contrary to the rights given to an accused
under the Criminal Procedure Code but at the same
time protect the administration of justice. Therefore,
as held by this Court in the case of State of
Maharashtra v. Dr. Praful B. Desai55 and Sakshi v.
52 (2000) 9 SCC 572
53 (1985) 1 SCC 317
54 (1997) 5 SCC 201
55 (2003) 4 SCC 601
Union of India56 we think the above requirement of
the Code could be met by directing the trial by
video-conferencing facility. In our opinion, this is
one of those rare cases wherein a frequent visit from
the place of detention to the court of trial in Bihar
would prejudice the security of both the respondent
and others involved in the case, apart from being a
heavy burden on the State exchequer. It is in this
background CBI has submitted that the prisons at
Chennai, Palayamkottai Central Jail, Vellore Central
Jail, Coimbatore Central Jail all in the State of
Tamil Nadu and Mysore Central Jail in the State of
Karnataka have video-conferencing facilities.
Therefore the respondent can be transferred to any
one of those jails.
44. While it is true that it is necessary in the
interest of justice to transfer the respondent out of
the State of Bihar, we are required to keep in mind
certain basic rights available to the respondent
which should not be denied by transferring the
respondent to any one of the jails suggested by CBI.
It will cause some hardship to the wife and children
of the respondent who we are told are normally
residents of Delhi, his wife being a Member of
Parliament and two young children going to school
in Delhi. Taking into consideration the overall fact
situation of the case, we think it appropriate that
the respondent be transferred to Tihar Jail at Delhi
and we direct the seniormost officer in charge of
Tihar Jail to make such arrangements as he thinks
are necessary to prevent the reoccurrence of the
activities of the respondent of the nature referred to
hereinabove and shall allow no special privileges to
him unless he is entitled to the same in law. His
conduct during his custody in Tihar Jail will
specially be monitored and if necessary be reported
to this Court. However, the respondent shall be
entitled to the benefit of the visit of his family as
provided for under the Jail Manual of Tihar. He
56 (2004) 5 SCC 518
shall also be entitled to such categorisation and
such facilities available to him in law.
45. We also direct that the trial of the case in Patna
shall continue without the presence of the appellant
by the court, dispensing such presence, and to the
extent possible shall be conducted with the aid of
video-conferencing. However, in the event of the
respondent making any application for his transfer
for the sole purpose of being present during the
recording of the statement of any particular witness,
same will be considered by the learned Sessions
Judge on its merit and if he thinks it appropriate,
he may direct the authorities of Tihar Jail to
produce the accused before him for that limited
purpose. This, however, will be in a rare and
important situation only and if such transfer order
is made the respondent shall be taken from Tihar
Jail to the court concerned and if need be, detained
in appropriate jail at the place of trial and under the
custody and charge of the police to be specially
deputed by the authorities of Tihar Jail who shall
bear in mind the factual situation in which the
respondent has been transferred from Patna to

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The aforesaid authority stands in close proximity to the case at hand. The present case, in fact, frescoes a different picture and projects a sad scenario compelling us to take immediate steps, while safeguarding the principle of fair trial for both the sides.

73. It is fruitful to note that in Dr. Praful B. Desai (supra) it has been clearly held that recording of evidence by way of video conferencing is valid in law.

74. In view of the aforesaid analysis, we record our conclusions and directions in seriatim:-

(i) The right to fair trial is not singularly absolute, as is perceived, from the perspective of the accused. It takes in its ambit and sweep the right of the victim(s) and the society at large. These factors would collectively allude and constitute the Rule of Law, i.e., free and fair trial.

(ii) The fair trial which is constitutionally protected as a substantial right under Article 21 and also the statutory protection, does invite for consideration a sense of conflict with the interest of the victim(s) or the collective/interest of the society. When there is an intra-conflict in respect of the same fundamental right from the true perceptions, it is the obligation of the constitutional courts to weigh the balance in certain circumstances, the interest of the society as a whole, when it would promote and instill Rule of Law. A fair trial is not what the accused wants in the name of fair trial. Fair trial must soothe the ultimate justice which is sought individually, but is subservient and would not prevail when fair trial requires transfer of the criminal proceedings.

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(iii) A wrongful act of an individual cannot derogate the right of fair trial as that interest is closer, especially in criminal trials, to the Rule of Law. An accused cannot be permitted to jettison the basic fundamentals of trial in the name of fair trial.

(iv) The weighing of balance between the two perspectives in case of fair trial would depend upon the facts and circumstances weighed on the scale of constitutional norms and sensibility and larger public interest.

(v) Section 3 of the 1950 Act does not create an impediment on the part the court to pass an order of transfer of an accused or a convict from one jail in a State to another prison in another State because it creates a bar on the exercise of power on the executive only.

(vi) The Court in exercise of power under Article 142 of the Constitution cannot curtail the fundamental rights of the citizens conferred under the Constitution and pass orders in violation of substantive provisions which are based on fundamental policy principles, yet when a case of the present nature arises, it may issue appropriate directions so that criminal trial is conducted in accordance with law. It is the obligation and duty of this Court to ensure free and fair trial.

(vii) The submission that this Court in exercise of equity jurisdiction under Article 142 of the Constitution cannot transfer the accused from Siwan Jail to any other jail in another State is unacceptable as the basic premise of the said argument is erroneous, for while addressing the issue of fair trial, the Court is not exercising any kind of jurisdiction in equity.

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75. In view of the aforesaid conclusions, we direct the State of Bihar to transfer the third respondent, M. Shahabuddin, from Siwan Jail, District Siwan to Tihar Jail, Delhi and hand over the prisoner to the competent officer of Tihar Jail after giving prior intimation for his transfer in Delhi. Needless to say, that the authorities escorting the third respondent from Siwan Jail to Tihar Jail would strictly follow the rules applicable to the transit prisoners and no special privilege shall be extended. The transfer shall take place within a week hence. Thereafter, the trial in respect of pending trials shall be conducted by video conferencing by the concerned trial court. The competent authority in Tihar Jail and the competent authority of the State of Bihar shall make all essential arrangements so that the accused and the witnesses would be available for the purpose of trial through video conferencing. A copy of this order shall forthwith be communicated to the Home Secretary, Government of Bihar, Superintendent of Siwan Jail and the Inspector General, Prisons, Tihar Jail, Delhi. All concerned are directed to act in aid of the aforesaid order as contemplated under Article 144 of the Constitution.

76. We have noted that the High Court of Patna has granted stay in certain proceedings. The High Court is requested to dispose of the said matters on their merits within four months hence. A copy of this order be sent to the Registrar General, High Court of Patna for placing the same before the learned Acting Chief Justice.

77. In view of the aforesaid analysis, Writ Petition (Criminal) No. 147 of 2016 stands disposed of. Similarly, Writ Petition (Criminal) No. 132 of 2016 also stands disposed of except for the prayer seeking direction to register FIR against Shri Tej Pratap Yadav, Health Minster of Bihar and S.P., Police of Siwan District, for which the matter be listed for further hearing at 2.00 p.m. on 21st of April 2017.



FEBRUARY 15, 2017

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