CBI Vs.
Hopeson Ningshen & Ors. [2010] INSC 332 (3 May 2010)
Judgment
IN THE
SUPREME COURT OF INDIA ORIGINAL CRIMINAL JURISDICTION Transfer Petition (Crl.)
Nos. 219-220 of 2009 Central Bureau of Investigation (C.B.I.) ... Petitioner
Versus Hopeson Ningshen & Ors. ... Respondents ORDER
1. The
Central Bureau of Investigation [Hereinafter `CBI'] has approached this Court
by way of Transfer Petition (Criminal) No. 219-220 of 2009 as contemplated
under Section 406 of the Code of Criminal Procedure [Hereinafter `CrPC'],
seeking transfer of cases RC IMPH 2009/S0002 and RC IMPH 2009/S0003, both dated
02-04-09, from the Court of the Chief Judicial Magistrate, Ukhrul, Manipur to a
competent Criminal court in Delhi.
2. In
these cases, the respondent has been accused of the kidnapping and murder of
three government employees in the State of Manipur. It would be useful to
provide an overview of the fact-situation leading up to the present litigation.
On 13-2- 2009, Dr. Thingnam Kishan Singh (S.D.O., Kasom Khullen, Distt. Ukhrul)
along with five staff members was abducted by militants while on their way from
Ukhrul to Kasom Khullen.
On
14-2-2009, three of the abducted persons, namely Sh. Ram Singh Siro, Sh.
Ramthing Singlai and Sh. Kapangkhui Jajo were released. Following this, a case
bearing FIR No. 8(2)/2009 was registered under Sections 365, 368 and 34 of the
IPC at the Ukhrul Police Station in respect of the missing persons. However, on
17-2-2009, dead bodies of Dr. Thingnam Kishan Singh, Sh. Y. Token Singh and Sh.
A. Rajen Sharma were recovered from the bank of river Taphao Kuki in the
proximity of National Highway-39 in Senapati District, Manipur. In light of the
discovery of the dead bodies, a case bearing FIR No. 3(2)/2009 was registered
under Sections 302 and 400 of the IPC at the Senapati Police Station. These
killings had provoked an outcry in the State of Manipur and 2 protests were
held by several groups. In fact a Joint Action Committee (JAC) had been formed
by several civil society groups to mobilize opinion about this case. Having
regard to the seriousness of the crime, the Government of Manipur thought it
fit to transfer the investigation into these cases to the CBI, which was
effected by way of a notification dated 19- 2-2009 as contemplated under
Section 6 of the Delhi Special Police Establishment Act. In pursuance of the
same, CBI acting through its Imphal Branch registered cases [RC IMPH 2009/S0002
and RC IMPH 2009/S0003, both dated 2-04- 2009] on the transfer of the
above-mentioned FIRs.
3.
Subsequent investigation pointed to the involvement of the respondent in the
abduction and killing of the deceased persons. The respondent, who is an
activist of the NSCN (IM) a militant organisation, was arrested by CBI on
29-05-2009. He was then produced before the Chief Judicial Magistrate in Ukhrul
District, who remanded him to police custody till 12- 06-2009, which was
subsequently extended. In the meanwhile, there had been considerable unrest in
relation to 3 this case. The Counsel for CBI has drawn our attention to the
fact that among the government employees who had been abducted on 13-2-2009,
three persons released on 14-02-2009 were of Naga ethnicity whereas the three
deceased persons were of Metei ethnicity. In addition to the social unrest
created in wake of the killings, there is also an apprehension of conflict
between persons belonging to these communities since the alleged killers were
of Naga ethnicity. Irrespective of such an apprehension, CBI has urged that the
trial in these cases be transferred to Delhi, in view of the specific threat to
the life of the respondent-accused which could frustrate the objective of
conducting a fair trial. Reliance has been placed on the correspondence between
the Director General of Police, Govt. of Manipur and a CBI officer (dated
04-06-2009), the relevant extracts of which are reproduced below:- "... It
may be recalled that on 29.05.2009 when Shri Hopeson Ningshen was brought to
Imphal for production before the CJM Ukhrul for police remand, a mob of
considerable strength gathered near the airport with intention to cause harm to
Shri Hopeson Ningshen. This was despite keeping the information about the
production of the accused Ningshen a secret. The members of the JAC and general
public are now aware that Shri Ningshen has been remanded to police custody 4
for 15 (fifteen) days and he is to be produced again before CJM Ukhrul after
expiry of the police remand period.
Considering
the highly emotive nature of this case with serious possibility of ethnic clash
between Meities and Nagas, it is felt that the very presence of Shri Ningshen in
Manipur is likely to lead to serious law and order problem, breach of peace,
violence and eminent threat to the life and safety of the accused."
4. The
CBI had instituted a transfer petition before this Court on 08-06-2009. In the
intervening period the respondent- accused has been brought to Delhi for
interrogation and he is presently being held in custody in Tihar Jail. In the
meanwhile, the investigation in these cases has also proceeded and the
requisite charge-sheet under Section 173 of the CrPC has been framed.
5. Shri
P.P. Malhotra, learned ASG appearing on behalf of the CBI has contended that it
would be in the interest of a fair trial to transfer the cases to a competent
Criminal Court in Delhi. It was urged that proceeding with the trial in Manipur
is likely to cause further social unrest as well as flaring up of communal
tensions which could ultimately have an adverse impact on the integrity of the
criminal trial. In particular, it 5 was urged that there existed a real danger
of the accused being physically attacked during the pendency of the trial.
Furthermore,
there was also the danger of witnesses being intimidated and the undue
harassment of the victims' families.
In the
proceedings before us, the counsel appearing on behalf of the State of Manipur
has not objected to the directions sought by CBI. In fact, the State Government
has taken a positive stand that looking at the situation prevalent even today,
it cannot guarantee the safety of the respondent- accused.
6. Shri
Siddharth Luthra, Sr. Adv., appeared before this Court as an amicus curiae in
the present matter.
7.
However, the near relatives of the deceased persons have objected to the
transfer of the cases under Section 406 of CrPC. One line of reasoning taken by
these parties was that the investigating agencies have exaggerated the
apprehensions about the social unrest and the law and order problems, which may
arise if the trial were to proceed in Manipur. In the 6 written submissions, it
has been suggested that the predictions about communal tension and a physical
attack on the accused are misplaced and that the police and judicial system in
Manipur are robust enough to prevent undue interference with the criminal
trial. It was further suggested that there are some other unexplored angles in
relation to the killings of the three government employees and that the
transfer of the case away from Manipur was being sought at the behest of some
corrupt local officials. We do not find any merit in the latter line of
reasoning.
8. Shri
Colin Gonsalves, Sr. Adv., did raise a significant point about the interests of
the near relatives of the deceased persons in the course of the criminal
proceedings. Our attention was drawn to the recently notified amendments to the
CrPC, wherein some provisions have been inserted to ensure the meaningful
participation of victims in the criminal justice system. In this regard, we can
refer to Sections 2 and 3 of the Code of Criminal Procedure (Amendment) Bill,
2008 which provide the following:
2. In
section 2 of the Code of Criminal Procedure, 1973 (hereinafter referred to as
the principal Act), after clause (w), the following clause shall be inserted,
namely:-- `(wa) "victim" means a person who has suffered any loss or
injury caused by reason of the act or omission for which the accused person has
been charged and the expression "victim" includes his or her guardian
or legal heir;'
3. In
section 24 of the principal Act, in sub-section (8), the following proviso
shall be inserted, namely:-- "Provided that the Court may permit the
victim to engage an advocate of his choice to assist the prosecution under this
sub-section."
In this
regard, concerns were expressed that the transfer of the case from Manipur to
Delhi would make it quite difficult for the near relatives of the deceased
persons to participate in the trial proceedings, either by way of legal
representation or any other conceivable method. It was therefore urged that if
such a transfer is indeed directed by this Court in exercise of the power under
Section 406 of CrPC, then some directions be given to protect the interests of
the near relatives of the deceased persons.
9. We
must reiterate that the foremost consideration for directing the transfer of
cases under Section 406 of CrPC is to 8 examine what is expedient in the ends
of justice. This is self- evident from a bare reading of the relevant provision
which states:
406.
Power of Supreme Court to transfer cases and appeals. - (1) Whenever it is made
to appear to the Supreme Court that an order under this section is expedient
for the ends of justice, it may 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.
...
10. This
court has of course given orders under the above- mentioned provision in the
past. Since this is a discretionary power, it may be instructive to refer to
the following observations made in the matter reported as Maneka Sanjay Gandhi
v. Rani Jethmalani, (1979) 4 SCC 167, (V.R. Krishna Iyer, J. at Paras. 2 and
5):
"2.
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 imperiling, 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 9
circumstances may be myriad and vary from case to case. We have to test the
petitioner's grounds on this touchstone bearing in mind the rule that normally
the complainant has the right to choose any court having jurisdiction and the
accused cannot dictate where the case against him should be tried. Even so, the
process of justice should not harass the parties and from that angle the court
may weigh the circumstances.
... 5. A
more serious ground which disturbs us in more ways than one is the alleged
absence of congenial atmosphere for a fair and impartial trial. It is becoming
a frequent phenomenon in our country that court proceedings are being disturbed
by rude hoodlums and unruly crowds, jostling or cheering and disrupting the
judicial hearing with menaces, noises and worse. This tendency of toughs and
street roughs to violate the serenity of the court is obstructive of the course
of justice and must surely be stamped out. Likewise, the safety of the person
of an accused or complainant is an essential condition for participation in a
trial and where that is put in peril by commotion, tumult or threat on account
of pathological conditions prevalent in a particular venue, the request for a
transfer may not be dismissed summarily. It causes disquiet and concern to a
court of justice if a person seeking justice is unable to appear, present one's
case, bring one's witnesses or adduce evidence. Indeed, it is the duty of the
court to assure propitious conditions which conduce to comparative tranquility
at the trial. Turbulent conditions putting the accused's life in danger or
creating chaos inside the court hall may jettison public justice. If this vice
is peculiar to a particular place and is persistent the transfer of the case
from that place may become necessary. Likewise, if there is general
consternation or atmosphere of tension or raging masses of people in the entire
region taking sides and polluting the climate, vitiating the necessary
neutrality to hold a detached judicial trial, the situation 10 may be said to
have deteriorated to such an extent as to warrant transfer. ..."
11. The
observations quoted above were also cited with approval in Zahira Habibulla H.
Sheikh v. State of Gujarat, (2004) 4 SCC 157, wherein the Court had also
observed (Pasayat, J. at Para. 36):
"...
It has to be unmistakably understood that a trial which is primarily aimed at
ascertaining the truth has to be fair to all concerned. There can be no
analytical, all- comprehensive or exhaustive definition of the concept of a
fair trial, and it may have to be determined in seemingly infinite variety of
actual situations with the ultimate object in mind viz. whether something that
was done or said either before or at the trial deprived the quality of fairness
to a degree where a miscarriage of justice has resulted. It will not be correct
to say that it is only the accused who must be fairly dealt with. That would be
turning a Nelson's eye to the needs of the society at large and the victims or
their family members and relatives. Each one has an inbuilt right to be dealt
with fairly in a criminal trial. Denial of a fair trial is as much injustice to
the accused as is to the victim and the society. Fair trial obviously would
mean a trial before an impartial judge, a fair prosecutor and atmosphere of
judicial calm. Fair trial means a trial in which bias or prejudice for or
against the accused, the witnesses, or the cause which is being tried is eliminated.
If the witnesses get threatened or are forced to give false evidence that also
would not result in a fair trial. The failure to hear material witnesses is
certainly denial of fair trial."
12. While
there are several other instances where this Court has passed orders in
exercise of the power contemplated by 11 Section 406 of CrPC, the observations
cited above are sufficient to guide the adjudication of the present case. In
order to ensure that a fair trial takes place in the cases in question, we must
account for the interests of all stakeholders, namely the accused, the
witnesses, the prosecutors, the near relatives of the victims as well as
society at large. We are indeed confronted with a complex situation where there
is a certain degree of divergence in the interests of the respective
stakeholders. The CBI in its capacity as the investigating agency has clearly
conveyed the risks associated with conducting the trial in Manipur. Even if one
were to concede that the apprehension about social unrest and communal tension
between the Meities and the Nagas were a little exaggerated, there can be no
quarrel that there exists a real possibility of a physical attack on the
respondent-accused as long as he is in Manipur. It was precisely because of
this consideration that the respondent-accused is being held in custody at a
distant location in Delhi. Furthermore, conducting the trial in Manipur could
also reasonably lead to more friction in the State of Manipur which in turn
could 12 affect the trial proceedings themselves. We must especially take note
of the fact that the killings took place in a region where opinions are sharply
divided on the justness of the causes espoused by the NSCN (IM) and that the
respondent- accused is a member of the same organisation. This creates a risk
of intimidation of the witnesses as well as undue prejudice seeping into the
minds of those who may be involved in the legal proceedings in different
capacities.
13. In
this scenario, in our considered view it would be expedient in the ends of
justice to conduct the trial in Delhi.
We
accordingly direct that the impugned cases be transferred from the Court of the
Chief Judicial Magistrate, Ukhrul, Manipur to a designated CBI Court (manned by
a judicial officer of the rank of a Sessions Judge) in New Delhi.
14. Since
there are 52 cited witnesses, CBI has undertaken to arrange for their travel
between Manipur and Delhi, so as to facilitate recording of their testimonies
and subsequent cross- examination during trial. It must be remembered that the
right 13 of cross-examination is an essential element in the course of a
criminal trial. As far as the near relatives of the deceased persons are
concerned, we understand that the physical distance between Manipur and Delhi
may cause some hindrance to their participation in the proceedings, but the
transfer of the case is essential in light of the considerations discussed
above. In order to protect their interests, we direct the CBI as well as the
Government of Manipur to render full assistance to the victim's legal heirs in
the matter of legal representation by way of engaging advocates of their
choice.
15. In
fact, looking to the interests of the victim's families, we thought it fit to
safeguard their interests as well. On a suggestion being made, Mr. P.P.
Malhotra, learned ASG, agreed to arrange for the to-and-fro journey and stay
etc., for one member belonging to the families of each of the deceased persons
on the dates of hearing. It was indeed a fine gesture.
Apart
from the above, the learned ASG has also suggested that even though a list of
52 witnesses has been prepared, efforts will be made to reduce the number of
witnesses to be 14 examined in an endeavour to examine only the necessary
witnesses. It is further necessary to direct that none of the parties should
seek undue adjournments in the matter and should render all possible help to
conclude the trial at the earliest.
16. The
present petitions are disposed off accordingly.
............................, CJI (K.G. BALAKRISHNAN)
............................, J. (DEEPAK VERMA)
............................J
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