Supreme Court: The bench of Dipak Misra and Amitava Roy, JJ directed the State of Bihar to transfer M. Shahabuddin, from Siwan Jail, District Siwan to Tihar Jail, Delhi within a week. The said prder of the Court came after the counsel appearing in the matter relating to Journalist Rajdev Ranjan’s murder had argued that Md. Shahabuddin, who was spotted with one of the accused persons who was absconding after the crime, should be transferred from Siwan Jail to Tihar Jail as he has been successfully instrumental in committing the crime while in jail or while he is out from jail even for a minimum period of time. The pending trails against the accused are to take place via video conferencing.
Rejecting the argument that the 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, the Court said that 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. The Court, hence, laid down the following principles regarding right to fair trial:
- The fair trial which is constitutionally protected as a substantial right under Article 21 of the Constitution 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.
- 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.
- 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.
- Section 3 of the Transfer of Prisoners Act, 1950 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.
- 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.
The transfer was sought as one Chandrakeshwar Prasad had preferred the writ petition under Article 32 of the Constitution of India that his two sons were abducted and murdered for which Md. Shahabuddin was convicted and sentenced to imprisonment for life and that the appeal against the said conviction and sentence is pending before the High Court. He also submitted that his third son was also done to death two days prior to giving evidence in court in respect of trial of his other two brothers. The counsel appearing for the petitioners had, on 24.10.2016, submitted that if such a history-sheeter is allowed to remain in the jail of Siwan Jail, the distress and the agony of the family of the petitioners would know no bound. [Asha Ranjan v. State of Bihar, WRIT PETITION (CRIMINAL) NO. 132 OF 2016, decided on 15.02.2017]