New Delhi: Supreme Court on Wednesday ordered shifting of controversial RJD leader Mohammad Shahabuddin, now facing trial in 45 criminal cases, from Siwan Jail in Bihar to Tihar Jail here within a week, saying an accused cannot be allowed to "jettison the basic fundamentals of trial".
The apex court referred to the criminal history of Shahabuddin and said "till today, he has been booked in 75 cases, out of which he had been convicted in 10 cases and presently facing trial in 45 cases" and the facts showed that "this is not a normal and usual case".
"We direct the state of Bihar to transfer the third respondent, M Shahabuddin, from Siwan Jail, District Siwan to Tihar Jail, Delhi and hand over the prisoner to the competent officer of Tihar Jail after giving prior intimation for his transfer in Delhi.
"Needless to say, that the authorities escorting the third respondent from Siwan Jail to Tihar Jail would strictly follow the rules applicable to the transit prisoners and no special privilege shall be extended. The transfer shall take place within a week hence," a bench of Justices Dipak Misra and Amitava Roy said.
In a related development, the apex court also decided to examine a plea seeking lodging of FIR against RJD supremo Lalu Prasad's son and Bihar Health Minister Tej Pratap Yadav, whose photograph was published in the media with an alleged sharp shooter close to Shahabuddin.
The verdict came on separate pleas filed by Asha Ranjan, the widow of slain Siwan-based journalist Rajdeo Ranjan, and Chandrakeshwar Prasad, whose three sons were killed in two separate incidents. They had sought shifting of the RJD strongman from Siwan jail to Tihar prison in New Delhi.
The court did the balancing act between the individual right of an accused to fair trial with the right of the society and preservation of the justice delivery system.
"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," the bench, in its 87-page verdict, said.
It said the trial in pending cases against Shahabuddin "shall be conducted by video conferencing by the concerned trial court.
"The competent authority in Tihar Jail and the competent authority of the State of Bihar shall make all essential arrangements so that the accused and the witnesses would be available for the purpose of trial through video conferencing."
In its verdict, the court said, "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. These factors would collectively allude and constitute the Rule of Law, ie, free and fair trial."
Dealing with the right to fair trial as enshrined under Article 21 of the Constitution, the bench said it was the duty of the constitutional court to weigh and strike a balance between the individual and societal rights.
"The fair trial which is constitutionally protected as a substantial right under Article 21 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," it said.
Relying on the apex court judgement transferring another controversial leader from Bihar, Rajesh Ranjan alias Pappu Yadav, to Tihar in a murder case, it noted that the right to fair trial "is not what the accused wants in the name of fair trial".
"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," it noted.
The court said the transfer of a particular accused from one state to prison in another and his right to fair trial would depend upon the facts and circumstances "weighed on the scale of constitutional norms and sensibility and larger public interest".
It rejected Shahabuddin's plea that the court cannot take away the fundamental right to fair trial of an accused by transferring him to a jail outside the state.
"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," it said.
Justice Misra, writing the judgement for the bench, noted that Shahabuddin has been "declared as a history-sheeter type 'A', that is, who is beyond reform".
"...He has been booked in 15 cases where he has been in custody and one such case relates to the murder of the third son of the petitioner (Chandrakeshwar Prasad) and other two cases are of attempt to murder.
"He is an influential person of the locality, for he has been a representative to the Legislative Assembly on two occasions and elected as a Member of Parliament four times.
"This is not a normal and usual case. It has to be dealt with in the aforesaid factual matrix. A history-sheeter has criminal antecedents and sometimes becomes a terror in society," the apex court said.
It referred to various judgements and said the courts have considered the importance of "peaceful social order while cancelling" bail of an accused if it has been granted without taking proper note of criminal antecedents of the accused.
"When there is threat to life, liberty and fear pervades, it sends shivers in the spine and corrodes the basic marrows of holding of the trial at Siwan. This is quite farther from the idea of fair trial.
"The grievance of the victims, who have enormously and apparently suffered, deserves to be dealt with as per the law of the land and should not remain a mirage and a distant dream. As we find, both sides have propounded the propositions in extreme terms. And we have a duty to balance," it said.
The apex court however agreed with the submission of the RJD leader that the court, in exercise of its special power under Article 142 (enforcement of decrees and orders of the SC) of the Constitution, cannot curtail the fundamental rights of citizens.
"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," it said.
It considered the facts that the Patna High Court had stayed the proceedings in some criminal cases and asked the High Court "to dispose of the said matters on their merits within four months hence. A copy of this order be sent to the Registrar General, High Court of Patna for placing the same before the learned Acting Chief Justice."
The apex court directed that the copy of its order "shall forthwith be communicated to the Home Secretary, Government of Bihar, Superintendent of Siwan Jail and the Inspector General, Prisons, Tihar Jail, Delhi."
