REPORTABLE

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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