REPORTABL E

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.

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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

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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

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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

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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

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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

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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:

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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

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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

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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

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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

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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

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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

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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

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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.

(B.S. CHAUHAN)

New Delhi

May 3, 2010

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