While transferring the trial of the gangrape and murder of the minor girl
in Kathua out of Jammu & Kashmir, to be conducted by the Pathankot District
and Sessions Judge, the Supreme Court on Monday underlined that “fear and
fair trial are contradictory in terms and they cannot be allowed to coexist”.
Section 406 of the Code of
Criminal Procedure, 1973 (Power of
Supreme Court to transfer cases and appeals) says that the Supreme Court may,
“for the ends of justice,… direct that any particular case or appeal be
transferred from one High Court to another High Court or from a Criminal Court
subordinate to one High Court to another Criminal Court of equal or superior
jurisdiction subordinate to another High Court”.
The Supreme Court also has the
power, under Article 139A(2) of the Constitution, to transfer cases from one High Court to another and, under Section
25 of the Civil Procedure Code, 1908, from a High Court or other civil
court in one state to a High Court or other civil court in another state.
The apex court has stressed that it “has been conferred with power to
direct transfer of any civil or criminal case from one State High Court to
another State High Court or from a Court subordinate to another State High
Court”. On July 19, 2016, a five-judge Constitution Bench of the court ruled
that it also had the power to transfer civil and criminal cases pending in
trial courts of Jammu and Kashmir to other states, the special status of
J&K notwithstanding.
“The provisions of Articles 32 (constitutional remedies for
enforcement of fundamental rights), 136 (special leave to appeal by the
Supreme Court) and 142 (enforcement of decrees and orders of Supreme
Court) are… wide enough to empower this Court to direct such transfer in
appropriate situations, no matter Central Code of Civil and Criminal Procedures
do not extend to the State nor do the State Codes of Civil and Criminal
Procedure contain any provision that empowers this court to transfer cases,”
the Bench led by then Chief Justice of India T S Thakur had ruled. (Anita
Kushwaha vs Pushap Sudan, with other petitions)
Some well known instances of the transfer of criminal cases from one
court to another in the past:
Jayalalithaa case
Madras High Court framed charges against Jayalalithaa in a disproportionate
assets matter in 1997. On February 8, 2003, with Jayalalithaa back as Chief
Minister, the DMK appealed for transfer of the case outside Tamil Nadu. On
November 18, 2003, the top court moved the trial to a Special Court in
Bangalore, observing that a “fair trial was not going on” in Chennai.
Best Bakery, Bilkis Bano cases
On April 12, 2004, the SC moved the trial of the Best Bakery case — in which 14
people were burnt alive in Vadodara on March 1, 2002, during the Gujarat riots
— to Mumbai from Gujarat. The Supreme Court also shifted the trial of the
Bilkis Yakub Rasool gangrape case, again from the 2002 Gujarat riots, from
Ahmedabad to Mumbai on the apprehensions of the victim and the CBI that witnesses
could come to harm if the trial was held in Gujarat.
Sohrabuddin Sheikh case
On September 27, 2012, the SC transferred the Sohrabuddin Sheikh fake encounter
case, in which BJP president Amit Shah was then an accused, from Gujarat to
Mumbai, fearing that a free and fair trial was not possible in Gujarat. On the
same day, the court rejected CBI’s plea to cancel Shah’s bail, and permitted
him to enter Gujarat ahead of elections there.
Kanchi Shankaracharya case
After the manager of the Varadarajaperumal temple in Kancheepuram, Tamil Nadu,
was killed on the temple premises on September 3, 2004, Shankaracharya Jayendra
Saraswathi was among six people charged with murder. In 2005, the SC shifted
the trial from a Chengalpet court to Puducherry after Saraswathi pleaded that
the accused “would not get a free and fair trial” in Tamil Nadu.
Credit: Indian Express Explained (http://indianexpress.com/article/explained/case-transfers-by-supreme-court-for-the-ends-of-justice-kathua-rape-muder-5168955/)
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