ASHA RANJAN versus STATE OF BIHAR & ORS.

48. In this context, it is also appropriate to refer to certain other d.ecisions where the Co~rt has dealt with the concep~ of competing rights. We are disposed to think that dictum laid therein has to be appositely appreciated. In Mr . .'X' v. Hospital 'Z"', the issue arose with regard to right to privacy as implicit in the right to lifeand liberty as guaranteed to the citizens under Article 21 of the Constitution and the right of another to lead a healthy life. Dealing with the said controversy, the Cour. held as a human being, Ms 'Y' must also enjoy, as she obviously is entitled to, all the human rights available to any other human being. This is apart from, and in addition to, the fundamental right available to her under Article 21, which guarantees "right to life" to every citizen of this country. The Court further held that where there is a clash of two fundamental rights, namely, the appellant's right to privacy as part ofright to life and Ms' Y's right to lead a healthy life which is her fundamental right under Article 21, the right which would advance the public morality or public interest, would alone be enforced through the process of court, for the reason that moral considerations cannot be kept at bay and the Judges are not expected to sit as mute structures of clay in the hall known as the cou11room, but have to be sensitive.

49. The aforesaid decision is an authority forthe proposition that there can be a conflict between two individuals qua their right under Article 21 of the Constitution and in such a situation, to weigh the balance the test that is required to be applied is the test of!arger public interest and furtherthat would, in certain circumstances, advance public morality of the day. To put it differently, the "greater community interest" or "1991 Supp (I) sec 600 " ( 1998) s sec 296 "interest of the collective or social order" would be the principle to recognize and accept the right of one which has to be protected.

50. In this context, reference to the pronouncement in Rev. Stainislaus v. State of M.P. and Ors." would be instructive. In the said case, the Constitution Bench was dealing with two sets of appeals, one arising from Madhya Pradesh that related to Madhya Pradesh Dharma Swatantraya Adh iniyam, 1968 and the other pertained to Orissa Freedom of Religion Act, 1967. The two Acts insofar as they were concerned with prohibition of forcible conversion and punishment therefor, were similar. The larger Bench stated the facts from Madhya Pradesh case which eventually travelled to the High Court. The High Court ruled that that there was no justification for the argument that Sections 3, 4 and 5 were violative of Article 25(1) of the Constitution. The High Court went on to hold that those Sections "establish the equality of religious freedom for all citizens by prohibiting conversion by objectionable activities such as conversion by force, fraud and by allurement". The Orissa Act was declared to be ultra vires the Constitution by the High Court. To understand the controversy, the Court posed the following questions:- "(1) whether the two Acts were violative of the fundamental right guaranteed under Article 25( 1) of the Constitution, and (2) whether the State Legislatures were competent to enact them?"

51. It was contended before this Court that the right to propagate one's religion means the right to convert a person to one's own religion and such a right is guaranteed by Article 25(1) of the Constitution. The larger Bench dealing with the said contention held:- "We have no doubt that it is in this sense that the word 'propagate' has been used in Article 25( 1 ), for what the article grants is not the right to convert another person to one's own religion, but to transmit or spread one's religion by an exposition of its tenets. It has to be remembered that Article 25(1) guarantees "freedom of conscience" to every citizen, and not merely to the followers of one particular religion, and that, in tum postulates that there is no fundamental right to convert another person to one's own religion because if a person purposely undertakes the conversion —-'– "r 1977) 1 sec 677 c c [2017) I S.C.R. of another person to his religion, as distinguished from his effort to transmit or spread the tenets of his religion, that would impinge on the "freedom of conscience" guaranteed to all the citizens of the country alike." And again:- "Jt has to be appreciated that the freedom of religion enshrined in the article is not guaranteed in respect of one religion only, but covers all religions alike, and it can be properly enjoyed by a person if he exercises his right in a manner commensurate with the like freedom of persons following the other religions. What is freedom for one, is freedom for the other, in equal measure, and there can therefore be no such thing as a fundamental right to convert any person to one's own religion."

52. The aforesaid judgment clearly lays down, though in a different context, that what is freedom for one is also the freedom for the other in equal measure. The perception is explicated when the Court has said that it has to be remembered that Article 25(1) guarantees freedom of conscience to other citizens and not merely to followers of particular religion and there is no fundamental right to convert another person. The right is guaranteed to all citizens. The right to propagate or spread one's religion by an exposition of its tenets does not mean one's religion to convert another person as it affects the fundamental right of the other. We have referred to this authority as it has, in a way, dwelt upon the "intra-conflict ofa fundamental right".

53. Be it stated, circumstances may emerge that may necessitate for balancing between intra-fundamental rights. It has been distinctly understood that the test that has to be applied while balancing the two fundamental rights or inter fundamental rights, the principles applied may be different than the principle to be applied in intra-conflict between the same fundamental right. To elaborate, as in this case, the accused has a fundamental rightto have a fair trial under Article 21 of the Constitution. Similarly, the victims who are directly affected and also form a part of the constituent of the collective, have a fundamental right for a fair trial. Thus, there can be two individuals both having legitimacy to claim or assert the right. The factum oflegitimacy is a primary consideration. It has to be remembered that no fundamental right is absolute and it can have limitations in certain circumstances.

Thus, permissible limitations are imposed by the State. The said limitations are to be within the bounds oflaw. However, when there is intra-conflict of the right conferred under the same Article, like fair trial in this case, the test that is required to be applied, we are disposed to think, it would be "paramount collective interest" or "sustenance of public confidence in the justice dispensation system". An example can be cited. A group of persons in the name of "class honour'', as has been stated in Vtkas Yltdav v. State of U.P. & Ors. 35 , cannot curtail or throttle the choice of a woman. It is because choice of woman in choosing her partner in life is a legitimate constitutional right. It is founded on individual choice that is recognized in the Constitution under Article 19, and such a right is not expected to succumb to the concept of "class honour" or "group thinking". It is because the sense of class honour has no legitimacy even if it is practised by the collective under some kind of a notion. Therefore, if the collective interest or the public interest that serves the public cause and further has the legitimacy to claim or assert a fundamental right, then only it can put forth that their right should be protected. There can be no denial of the fact that the rights of the victims for a fair trial is an inseparable aspect of Article 21 of the Constitution and when they assert that right by themselves as well as the part of the collective, the conception of public interest gets galvanised. The accentuated public interest in such circumstances has to be given primacy, for it furthers and promotes "Ru le of Law". It may be clarified at once that the test of primacy which is based on legitimacy and the public interest has to be adjudged on the facts of each case and cannot be stated in abstract terms. It will require studied scanning of facts, the competing interests and the ultimate perception of the balancing that would subserve the larger pub I ic interest and serve the majesty of rule oflaw. In this regard, we are reminded of an ancient saying:- "yadapi siddham, /aka viruddham Na adaraniyam, na acharaniyam" The aforesaid saying lays stress on public interest and its significance and primacy over certain individual interest. It may not thus have general application, but the purpose ofreferring to the same is that • on certain occasions it can be treated to be appropriate.

54. There may be a perception that if principle of primacy is to be followed, then the right of one gets totally extinguished. It has to be "(2016)9 sec 541 c . 988 c . [2017) l S.C.R. borne in mind that total extinction is not balancing. When balancing act is done, the right to fair trial is not totally crippled, bHt it is curtailed to some. extent by which the accused gets the right• of fair trial and simultaneously, the victims feel that the fair trial is conducted and the court feels assured· that there is a fair trial in respect of such cases. That apart, the faith of the collective is reposed in the criminal justice dispensation system and remains anchored.

55. While appreciating the concept of public interest in such a situation, the Court is required to engage itself in construing the process of fair trial which ultimately subserves the cause of justice and remains closer to constitutional sensibility. An accused, in the name of fair trial, cannot go on seeking adjournments defeating the basic purpose behind the conducting of a trial as enshrined under Section 309 CrPC. He cannot go on filing applications under various provision~ of CrPC, whether tenable or not, and put forth a plea on eachand ~very occasion on the bedrock that principle of fair trial sanctions it. In such·a situation, as has been held by this Court, the prosecution which· repre'sents the cause of collective and the victim, who fights forremedyofhis individual grievance, is allowed to have a say and the court is not expected to be a silent spectator. Thus, the discord that arises when there is intra-conflict in the same fundamental right especially, in the context of fair trial, it has to be resolved regard being had to the obtaining fact situation. An ac~used who has been able to, by his sheer presence, erode the idea of.safety of a witness in court or for that matter impairs and rusts the faith of a victim in the ultimate justice and such erosion is due to fear psychosis prevalent in the atmosphere of trial, is not to be coun~enanced as it is an unconscionable situation. Such a hazard is not to be silently suffered F · because the "Majesty of Justice" does not allow such kinds of complaints to survive. Thus analysed, the submission of Mr. Naphade that shifting of the accused outside the Siwan Jail would affect his right under Article 21 of the Constitution does not commend acceptation.

56. The next limb of controversy relates to exercise of power and jurisdiction. The plea that is propounded by Mr. Naphade is that in the absence of any provision in the 1950 Act, there cannot be any direction for shifting. According to him, any State action which prejudices the right of an individual has to be backed by the authorjty oflaw and in the absence of law, such an order is not permissible. In this regard, he has drawn inspiration from a passage from the 'state of M.P. & anotlter v. Thakur Bharat Singh". It reads as follows:- "All executive action which operates to the prejudice of any person must have the authority oflaw to support it, and the terms of Article 358 do not detract from that rule. Article 358 expressly authorises the State to take legislative or executive action provided · such action was competent for the State to make or take, but for the provisions contained in Part Ill of the Constitution. Article 358 does not purport to invest the State with arbitrary authority to take action to the prejudice of citizens and others: it merely provides that so long as the proclamation of emergency subsists laws may be enacted, and exclusive action may be taken in pursuance oflawful authority, which ifthe provisions of Article 19 were operative would have.been invalid."

57. The aforesaid contention has a fundamental fallacy and, therefore, the authority in ·Thakur Bharat Singh (supra) has no application. In the case at hand, no State action is under challenge. The plea of prejudice that has been advanced has no legs to stand upon as the petitioners have approached this Court for directions. it is well settled in law that there is a distinction between a judicial function and the legislative action, and similarly the executive action and a direction from the Court. It has been lucidly clarified by the Constitution Bench in State of W.B. & Ors v. Committee for Protection of Democratic Rights, West Bengal & Ors37• The question arose in the said case was whether the High Court in exercise of jurisdiction under Article 226 of the Constitution can direct the CBI established under the Delhi Special Police Establishment Act, 1946 (for short, 'Special Police Act') to investigate a cognizable offence which is alleged to have taken place within the territorial jurisdiction of a State without the consent of the State Government.

After referring to various provisions of the Special Police Act, the Court posed the question "whether the restrictions imposed on the powers of the Central Government would apply mutatis mutandis to constitutional courts as well" and referring to various authorities, recorded number of conclusions, of which we reproduce the relevant ones:- "(i) The fundamental rights, enshrined in Part III of the Constitution, are inherent and cannot be extinguished by any "AIR 1967SCI170 "(20IOJ 3 sec s11 989' c .G. c (201 7] 1 S.C.R. constitutional or statutol)' provision. Any law that abrogates or abridges such rights would be violative of the basic structure doctrine. The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account in determining whether or not it destroys the basic structure. (ii) Article 21 of the Constitution in its broad perspective seeks to protect the persons of their lives and personal liberties except according to the procedure established by law. The said article in its broad application not only takes within its fold enforcement of the rights of an accused but also the rights of the victim. The State has a duty to enforce the human rights ofa citizen providing for fair and impartial investigation against any person accused of commission of a cognizable offence, which may include its own officers. In certain situations even a witness to the crime may seek for and shall be granted protection by the State. (iii) In view of the constitutional scheme and the jurisdiction conferred on this Court under Article 32 and on the High Courts under Article 226 of the Constitution the power of judicial review being an integral part of the basic structure of the Constitution, no Act of Parliament can exclude or curtail the powers of the constitutional courts with regard to the enforcement of fundamental rights. As a matter of fact, such a power is essential to give practicable content to the objectives of the Constitution embodied in Part lll and other parts of the Constitution. Moreover, in a federal constitution, the distribution of legislative powers between Parliament and the State Legislature involves limitation on legislative powers and, therefore, this requires an authority other than Parliament to ascertain whether such limitations are transgressed. Judicial review acts as the final arbiter not only to give effect to the distribution of legislative powers between Parliament and the State Legislatures, it is also necessal)' to show any transgression by each entity. Therefore, to borrow the words of Lord Steyn,judicial review is justified by combination of"the principles of separation of powers, rule oflaw, the principle of constitutionality and the reach of judicial review". (iv) If the federal structure is violated by any legislative action, the Constitution takes care to protect the federal structure by ensuring that the Courts act as guardians and interpreters of the Constitution and provide remedy under Articles 32 and 226, whenever there is an attempted violation. In the circumstances, any direction by the Supreme Court or the High Court in exercise of power under Article 32 or 226 to uphold the Constitution and maintain the rule of law cannot be termed as violating the federal structure. (v) Restriction on Parliament by the Constitution and restriction on the executive by Parliament under an enactment, do not amountto restriction on the power of the Judiciary under Articles 32 and 226 of the Constitution." And eventually, the Court answered the reference thus:- "ln the final analysis, our answer to the question referred is that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to CBI to investigate a cognizable offence alleged to have been committed with in the territory of a State without the consent of that State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law.

Being the protectors of civil liberties of the citizens, this Court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly."

58. The aforesaid decision compels us to repel the submission of Mr. Naphade on this score which is to the effect tha(when no power is conferred under the 1950 Act, the Court cannot exercise the power or when the power is curtailed, the Court cannot issue directions. The controversy in the Constitution Bench pertained to direction by the High Court to transfer the investigation to the CBI in respect of the crime that occurs within the territory of the State and this Court held that the High Court has the authority to so direct dc$pite the prohibition contained in the Special Police Act. Therefore,(:,.; non-conferment of power under the 1950 Act would not prohibit the High Court, in exercise of its power under Article 226 to transfer a case from one jail to another inside the State depending upon the circumstances.

59. The question that arises in the case at hand pertains to exercise of jurisdiction under Articles 32, 142 and 144 of the Constitution. It is c c (2017] I S.C.R. submitted by Mr. Naphade that an order under Article 142 cannot be passed in violation of the rights under Part III of the Constitution nor such an order can be inconsistent with the substantive provisions of the relevant ~tatute. He has drawn out attention to the Constitution Hench decision in Prem Clumd Garg &. a1u1t/1er y. Excise Commr, ".. In tbe said case, the majority ruled that:- "12 …… The powers of this Court are no doubt very wide and they are intended to be and will always be exercised in the interest of justice. But that is not to say that an order can be made by this Court which is inconsistent with the fundamental rights guaranteed by Part Ill of the Constitution. An order whic~ this Court can make in order to do complete justice between the parties, must notonly be consistent witli the fundamental ri'ghts' guaranteed by the Constitution, but it cannot even be inconsistent with the substantive provisions of the relevant statutory laws. Therefore, we do not think it would be possible io hold that Article 142(1) confers upon this Court powers which can contravene the provisions of Article 32."

60. Placing reliance on A.R. Antulay v. R.S. Nllyllk & anotller39, Mr. Naphade would urge that the court cannot' pass an order in exercise of jurisdiction under Article 142 of the Constitution which will affect the fundamental right ofa person. In Antu/ay's case, the five-Judge Bench in R.S. Nayak v. A.R. Antulay"°, had transferred the case from Special Court under the Prevention of Corruption Act to the High Court in order to expedite the trial. In doing so, as felt by the later judgment renJered· by seven Judges, the Court had ignored the mandatory provision of Section 7(2) of the Criminal Law Amendment Act, 1952 and, therefore, two rights of Antulay were violated, one, the accused could only be tried by a Special Judge and secondly, he had a right of statutory appeal to the · High Court. The Court ruled that there was breach of fundamental rights under Articles 14 and 21 of the Constitution. While elucidating the principle under Article 142, Sabyasachi Mukharji, J. (as His Lodship then was) ruled:- "The fact that the rule was discretionary did not alter the position.

Though Article 142(1) empowers the Supreme Court to pass "AIR 1963 SC 996 "l 1988) 2 sec 602 "'(1984)2SCC 183 any order to do complete justice between the parties, lhe court cannot make an order inconsistent with the fundamental rights guaranteed by Part III of the Constitution. No question of ·inconsistency between Article 142( 1) and Article 32 arose. Gajendragadkar,.J:, speaki.ng for· the majority of.the judges of. this Court said that Article 142( I) did not confer any power on this Court to contravene the provisions of Article 32 of the Constitution. Nor did Article 1.45 confer power upon tr.is Court to make rules, empowering it to contravene the provisions of the fundamental right. At page 899 of the Reports, Gajendragadkar, J., reiterated that the powers of this Court are no doubt very wide and they are intended and "will always be exercised in the interests of justice''. But that i.s not to saY.that an ord.er car be made by this Court which is inco~sistent with the fundamental rights guaranteed by Part Ill of the Constitution, It .was emphasised that an order which this Court could make in order to do complete justice between the parties, must not only be consistent with the fundamental rights guaranteed by the Constitution, but it cannot even be inconsistent with the substantive provisions of the relevant statutory. laws (emphasis supplied). The court therefore, held that it was not possible to hold that Article 142(1) conferred upon this Court powers which could contravene the provisions of A11icle 32."

61. Relying on the aforesaid dictum, it is canvassed by Mr. Naphade that when the transfer of an accused from one State to another is not envisaged under the 1950 Act, and the concept of fair tria·I commands that an accused has to be tried fairly and should not be removed to a distant place where he would feel isolated and cut-off from. his relations and familiar milieu, for it would tantamount to violation of the right as enshrined under Article 21 of the Constitution. He would further contend that power under Article 142 cannot be exercised that would create a dent in the fundamental right or would be inconsistent with the statutory provisions. Controverting the aforesaid submission, Mr. Bhushan, learned senior counsel for the :ietitioners has drawn our attention to a Constitution Bench judgment in Union Carbi<le Corporation (supra). In paragraph 83, M.N. Venkatacha!iah, J, (as His Lordship' then was) speaking forthe majority, opined thus:- "lt is necessary to set at rest certain misconceptions in the c .E c arguments touching the scope of the powers of this Court under Article 142(1) of the Constitution. These issues are matters of serious public importai1ce. The proposition that a provision in any ordinary law irres.pective of the importance of the public policy on which it is founded, operates to limit the powers of the apex Court under Article 142(1) is unsound and erroneous. In both Garg as well as Antu/CJ}' cases the point was one of violation of constitutional provisions and constitutional rights. The observations as to the effect of inconsistency with statutory provisions were really unnecessary in those cases as the decisions in the ultimate analysis turned on the breach of constitutional rights. We agree with Shri Nariman that the power of the Court under Article 142 insofar as quash.ing of criminal proceedings are concerned is not exhausted by Section 320 or 321 or 482 CrPC or all of them put together. The power under Article 142 is at an entirely different level and of a different quality. Prohibitions or limitations or provisions contained in ordinary laws cannot, ipso facto, act as prohibitions or limitations on the constitutional powers under Article 142. Such prohibitions or limitations in the statutes might embody and reflect the scheme of a particular law, taking into account the nature and status of the authority or the court on which conferment of powers – limited in some appropriate way – is contemplated. The limitations may not necessarily reflect or be based on any fundamental considerations of public policy. Sri Sorabjee, learned Attorney General, referring to Garg case, said that 1 imitation on the powers under Article 142 arising from "inconsistency with express statutory provisions of substantive law" must really mean and be understood as some express prohibition contained in any substantive statutory law. He suggested that ifthe expression 'prohibition' is read in place of 'provision' that would perhaps convey the appropriate idea. But we think that such prohibition should also be shown to be based on some underlying fundamental and general issues of public policy and not merely incidental to a particular statutory scheme or pattern. It will again be wholly incorrect to say that powers under Article 142 are subject to such express statutory prohibitions. That would convey the idea that statutory provisions · override a constitutional provision. Perhaps. the proper way of expressing the idea is that in exercising powers under Article 142 and in assessing the needs of"complete justice" of a cause or matter, the apex Court will take note of the express prohibitions in any substantive statutory provision based on some fundamental principles of public policy and regulate the exercise of its power and discretion accordingly.

The proposition does not relate to the powers of the Court under Article 142, but only to what is or is not 'complete justice' of a cause or matter and in the ultimate analysis of the propriety of the exercise of the power. No question oflack of jurisdiction or of nullity can arise''. [Emphasis supplied]

62. It is urged by Mr. Naphade that the said judgment is per inc'uriam as it runs counter to what has been stated in Antulay (supra). Suffice it to say, we are bound by the view expressed in Union Carbide Corporation (supra) which has appreciated the ratio of Antulay's case in a particular manner. That apart, we have no hesitation in stating that what has been stated in Union Carbide Corporation (supra) by Venkatachaliah, J. is in accord with the constitutional scheme of justice.

63. Mr. Naphade, learned senior counsel has also drawn our attention to a Constitution Bench decision in Supreme Court Bar Association v. Union of India and Anr. 41• In the said case, the Court dealing with the plenary power under Article 142 of the Constitution opined that the plenary powers of this Court under Article 142 of the Constitution are inherent in the Court and are complementary to those powers which are specifically conferred on the Court by various statutes though are not limited by those statutes. These powers also exist independent of the statutes with a view to do complete justice between the parties. These powers are of very wide amplitude and are in the nature of supplementary powers. This power exists as a separate and independent basis of jurisdiction apart from the statutes. It stands upon the foundation and the basis for its exercise may be put on a different and perhaps even wider footing, to prevent injustice in the process of litigation and to do complete justice between the parties.

This plenary jurisdiction is, thus, the residual source of power which this Court may draw upon as necessary whenever it is just and equitable to do so and in particular to ensure the observance of the due process of law, to do complete justice between the parties, while administeringjustice according to law. Thereafter, the Court held:- " t t 998) 4 sec 409 c c [2017] I S.C.R. "There is no doubt that it is an indispensable adjunct to all other powers and is free from the restraint of jurisdiction and operates as a valuable weapon in the hands of the Court to preveni "clogging or obstruction of the stream of justice". It, however, needs to be remembered thatthe powers conferred on the Court. by Article 142 being curative in nature cannot be construed as powers which authorise the Court to ignore the substantive rights of a litigant while dealing with a cause pending before it. This power cannot be used to "supplant" substantive law applicable to the case or cause under consideration of the Court.

Article 142, even with the width of its amplitude, cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject and thereby to achieve something indirectly which cannot be achieved directly …. "

64. The Court thereafter referred to the authorities in Delhi Judicial Service Association v. State of Gujarat & ors'', Re, Vinay Chandra Mishra'-', Prem Chand Garg {supra), and Union Carbide Corporation (supra), specially para 83 of the last decision and proceeded to rule thus:- "55. Thus, a careful reading of the judgments in Union Carbide Corpn. v. Union of India; the Delhi Judicial Service Assn. case (supra) and Mohd. Anis case44 relied upon in V.C. Mishra case (supra) show that the Court did not actually doubt the correctness of the observations in Prem Chand Garg case (supra). As a matter of fact, it was observed that in the established facts of those cases; the observations in Prem Chand Garg case had "no relevance". This Court did not say in any of those cases that substantive statutory provisions dealing expressly with the subject can be ignored by this Court while exercising powers under Article 142. 56. As a matter of fact, the observations on which emphasis has been placed by us from the Union Carbide case, A.R. Ar.tulqy case and Delhi Judicial Service Assn. case go to show that they do not strictly speaking come into any conflict with the observations of the majority made in Prem Chand Garg case. "(1991) 4 sec 406 "< 1995) 2 sec 584 ,. 1994 Supp. (I) sec 145 It is one thing to say that "prohibitions or limitations in a statute" cannot come in the way of exercise of jurisdiction under Article 142 to do complete justice between the parties in the pending • "cause or matter" arising out of that statute, but quite a different thing to say that while execcisingjurisdiction under Article> 142, this court can altogether ig1iore the substantive provisions of a· statute, dealing with the subject and pass orders concerning an ·. .B issue which can be settled only through a mechanism prescribed ·in· another statute. This Court did not say so in Union Carbide case (supra) either expressly or by implication and on the contrary it has been held that the Apex Court will take note of the express provisions of any substantive statutory law and regulate the exercise of its power and discretion accordingly. ·[emphasis added]

65. In this context, we may refer with profit to a two-Judge Bench decision in Narendra Clwmpaklal Trivedi v. State of Gu]arar". In the said case, question arose with regard to reduction of senten.ce that had been imposed under Section 13(3) of the Prevention of Corruption Act, 1988. The Court referred to the earlier decisions in Vishwesltwaraiah Iron & Steel Ltd. v. Abdul Gani & Ors46, Keshabhai Ma/abhai Vankar v. State of Gujarat'', Laxmidas Morarji v. Behrose Darab Madan" and held thus:- " … where the minimum sentence is provided, we think it would not be at all appropriate to exercise jurisdiction under Article 142 of the Constitution oflndia to reduce the sentence on the ground of the so-called mitigating factors as that would tantamount to supplanting statutory mandate and further it would amount to ignoring the substantive statutory provision that prescribes minimum sentence for a criminal act relating to demand and acceptance of bribe. The amount may be small but to curb and repress this kind of proclivity the legislature has prescribed the minimum sentence. It should be paramountly borne in mind that corruption at any level does not deserve. either sympathy or leniency. In fact, reduction of the sentence would be adding a "(2012) 1 sec so 46 (1997)8SCC713 "1995 Supp. (3) sec 704 " (2009) 1 o sec 425 c (20 I 7] I S.C.R. premium. The law does not so countenance and, rightly so, because corruption corrodes the spine of a nation and in the ultimate eventuality makes the economy sterile." Thus, the Bench did not think it apt to ignore the substantive statutory provisions.

66. In this regard, we may also refer to the authority in Shamsu Sulwra Beevi v. G Alex and another". In the said case, the Court was dealing with a /is that pertained to an agreement of sale. There was no prayer for amendment of the plaint to include the relief of compensation for breach of contract in addition to the specific performance of the agreement. The relief was claimed under Section 28 of the Specific Relief Act, 1963 but not under Section 21 of that Act. The High Court came to the conclusipn that Section 28 would not be applicable to the facts of the case but granted relief under Section 21 of the said Act. In that context, the Court ruled thatthe High Court would not have granted compensation under Section 21 in addition to the relief of specific performance in the absence of a prayer made to that effect either in the plaint or amending the same at any later stage of the proceedings to include the relief of compensation in addition to the relief of sp~cific performance; that grant of such a relief in the teeth of express provisions of the statute to the contrary is not permissible; that on equitable considerations court cannot ignore or overlook the provisions of the statute, and that equity must yield to law.

67. In the context of the aforesaid authorities, the submission of Mr. Naphade is to be appreciated. It is canvassed by him that Section 3 of the 1950 Act permits transfer of a prisoner outside the State under certain circumstances and, therefore, no other circumstance can be visualized while exercising power under Article 142 of the Constitution as that will be running counter to the substantive provisions of the statute. He further submits that this Court cannot legislate under Article 142 and equity must yield to the provisions of law.

68. There can be no doubt that equity cannot override law. As far as the first aspect is concerned, we need not advert to the broad platform on which Mr. Naphade has based his contention. Suffice it to note that Section 3 of the 1950 Act bestows power on the State Government to transfer an accused to another State after consulting the " (2004 J s sec 569 other State. Such an action by the State has to be totally controlled by the circumstances which find mention under Section 3. When the State passes an order with the concurrence of another State, it is obliged to be bound by the circumstances which are postulated under Section 3(1) of the 1950 Act, but when the issue of fair trial emerges before the constitutional court, Section 3 of the 1950 Act cannot be regarded so as to restrain the court from what is 111c5ndated and required for a free and fair trial. The statutory power is not such which is negative and curtails power of the court to act in the interest of justice, and ensure free and fair trial, which is of paramount importance for the Rule of Law. It only controls the power of the exec11tive. Therefore, we are unable to accept the submission of Mr. Naphade in this regard.

69. Presently, we shall advert to the facts which we have stated in the begiiming. The third respondent has already been declared as a history-sheeter type 'A', that is, who is beyond reform. 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. There is no dispute that he has been acquitted in 20 cases. Out of 45 cases, 21 cases are those where maximum sentence is 7 years or more. 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 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 occa>ions 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. In Neeru Yadav v. State of U.P. and Anr. 50 , this Court, while cancelling bail granted to a history-sheeter, was compelled to observe:- "16 ….. A democratic body polity which is wedded to the rule of law, anxiously guards liberty. But, a pregnant and significant one, the liberty of an individual is not absolute. Society by its collective wisdom through process of law can withdraw the liberty that it has sanctioned to an individual when an individual becomes a danger to the collective and to the societal order. Accent on individual liberty cannot be pyramided to that extent which would bring chaos ancf anarchy to a society. A society expects '" <2014) 16 sec sos c c .H (2017] l S.C.R. responsibility and accountability from its members, and it desires . that the citizens should obey the law, respecting it as a cherished social norm.

No individual can make an attempt to create a concavity in the stem of social stream. It is impermissible. Therefore, when an individual behaves in a disharmonious manner ushering in disorderly things which the society disapproves, the legal consequences are bound to follow. At that stage, the court has a duty. It cannot abandon its sacrosanct obligation and pass an order at its own whim or caprice. It has to be guided by the established parameters of law." We have referred to the aforesaid authority to highlight how the Court has taken into consideration the paramountcy of peaceful social order while cancelling the order of bail, for the order granting bail was passed without proper consideration of criminal antecedents cf the accused whose acts created a concavity in the social stream.

70. Mr. Bhushan, learned senior counsel heavily relied on the authority in Ka/yan Chandra Sarkar v. Rajesfl Ranjan alias Pappu Yadav and anotfler'1• It is urged.by him thatfactual matrix in t)le said case and the present case is identical. In the said case, the Court n0ticed that the respondent therein, Rajesh Ranjan alias Pappu Yadav while he was in judicial custody, was found addressing an election meeting. The Court called for a report from the authorities cencemed requiring them to explain on what authority the said ~espondent was allowed to address a public meeting. The report filed by the CBI revealed that the respondent, in collusion with the police authorities accompanying him to Madhepura, had addressed a public meeting and the escort accompanying hiir took him to various places which the respondent wanted to visit beyond the, scope of the production warrant. It had come to the knowledge of the Court thaMhough his bailnmt been cancelled, the accused was never taken into jail and, in fact, when he was arrested after the cancellation of bail, he was taken to Patna and an urgent Medical Board was constituted to examine him which opined that the accused required medical treatment at Patna Medical College and permitted him to slay in the said Medical College.

Taking various other facts into consideration, the Court opined that the respondent had absolutely no respect for the Rule of Law nor was he, in any manner, afraid of the consequences of his unlawfuFltcts. It was also observed that, it was evident from the fact " (2005) 3 sec 2s4 ASHA RANJAN v. STATE OF BlHAR & ORS. [DIPAK MISRA, J.] that some of the illegal acts of the respondent were committed even when his application for grant of bail was pending. When the issue of transfer from Beur Jail, Patna to a jail outside the State arose, a contention 1 was advanced that it would affect his fundamental right as has been enunciated in Sunil Batra (II) (supra). The Court referred to Section 3 of the 1950 Act and in that context, opined that in an appropriate case, such request can also be made by an undertrial prisoner or a detenu and there being no statutory provisions contrary thereto, this Court in exercise of its jurisdiction under Article 142 of the Constitution may issue necessary direction.

71. The two-Judge Bench referred to the authorities in Supreme Court Bar Associatio11 (supra) and Union Carbide Cotporation (supra) and ruled thus:- "29. Despite some critici~ms in some quarters as regards the correctness of the decision in Union Carbide (supra) we may notice that in Mohd. Anis v. Union of India (supra) it was held that the power of the Supreme Court under Article 142(1) cannot be diluted by Section 6 of the Delhi Special Police Establishment Act, 1946."

72. The Court, thereafter, referred to the authorities in State of Karnataka v. State of A.P. & Ors", State of W.B. & Ors v. Sampat Lal & Ors-'·' As/wk Kumar Gupta & another v. State of U.P. & Ors" and eventually opined:- "43. It is true that in a normal trial the Criminal Procedure Code requires the accused to be present at the trial but in the peculiar ' circumstances of this case a procedure will have to be evolved, c which will not be contrary to the rights given to an accused under the Criminal Procedure Code but at the same time protect the administration of justice. Theref9re, as he!~ by this Court in the case of State of Maharashtra~v,_..p,:, Praful B. Desai55 and Sakshi v. Union of India" we think the above requirement of the Code could be met by directing the trial by video-conferencing facility. In our opinion, this is one of those rare cases wherein a " (2000) 9 sec 572 "(1985) I SCC317 ,.

(199ZJ s sec 201- " (2003) 4 sec 601 "(2004) s sec 51s· c [2017] I S.C.R. frequent visit from the place of detention to the court of trial in Bihar would prejudice the security of both the respondent and others involved in the case, apart from being a heavy burden on the State exchequer. It is in this background CBI has submitted that the prisons at Chennai, Palayamkottai Central Jail, Vellore Central Jail, Coimbatore Central Jail all in the State of Tamil Nadu and Mysore Central Jail in the State of Karnataka have video-conferencing facilities. Therefore the respondent can be transferred to any one of those jails. 44. While it is true that it is necessary in the interest of justice to transfer the respondent out of the State of Bihar, we are required to keep in mind certain basic rights available to the respondent which should not be denied by transferring the respondent to any one of the jails suggested by CBI.

It will cause some hardship to the wife and children of the respondent who we are told are normally residents of Delhi, his wife being a Member of Parliament and two young children going to school in Delhi. Taking into consideration the overall fact situation of the case, we think it appropriate that the respondent be transferred to Tihar Jail at Delhi and we direct the seniormost officer in charge ofTihar Jail to make such arrangements as he thinks are necessary to prevent the reoccurrence of the activities of the respondent of the nature referred to hereinabove and shall allow no special privileges to him unless he is entitled to the same in law. His conduct during his custody in Tihar Jail will specially be monitored and ifnecessary be reported to this Court. However, the respondent shall be entitled to the benefit of the visit of his family as provided for under the Jail Manual ofTihar.

He shall also be entitled to such categorisation and such facilities available to him in law. 45. We also direct that the trial of the case in Patna shall continue without the presence of the appellant by the court, dispensing such presence, and to the extent possible shall be conducted with the aid of video-conferencing. However, in the event of the respondent making any application for his transfer for the sole purpose of being present during the recording of the statement of any particular witness, same will be considered by the learned Sessions Judge on its merit and if he thinks it appropriate, he may direct the authorities ofTihar Jail to produce the accused before him for that limited purpose. This, however, will be in a rare and impCYrtant situation only and if such transfer order is made the respondent shall be taken from Tihar Jail to the court concerned and if need be, detained in appropriate jail at the place of trial and under the custody and charge of the police to be specially deputed by the authorities ofTihar Jail who shall bear in mind the factual situation in which the respondent has been transferred from Patna to Delhi." The aforesaid authority stands in close proximity to the case at hand. The present case, in fact, frescoes a different picture and projects a sad scenario compelling us to take immediate steps, while safeguarding the principle of fair trial for both the sides.

73. It is fruitful to note that in Dr. Praful B. Desai (supra) it has been clearly held that recording of evidence by way of video conferencing is valid in law.

74. In view of the aforesaid analysis, we record our conclusions and directions in seriatim:- (i) 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, i.e., free and fair trial. (ii) 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.

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. (iii) A wrongful act of an individual cannot derogate the right of c c 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 (iv) The weighing of balance between the two perspecti"es in case of fair trial would depend upon the facts and circumstances weighed on the scale of constitutional norms and sensibility and larger public interest. (v) Section 3 of the l 950Act does not create an impediment on the part the court to pass an order of transfer of ari. accused or a convict from one jail in a State to another prison in another State because it creates a bar on the exerc;se of power on the executive only. (vi) The Court in exercise of power under Article 142 of the Constitution cannot curtail the fundamental rights of the citizens conferred under the Constitution and pass orders in violation of substantive provisions which are based on fundamental policy principles, 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. (vii)The submission that this Court in exercise of equity jurisdiction under Article 142 o.f the Constitution cannot transfer the accused from Siwan Jail to any other jail in another State is unacceptable as the basic premise· of the said argument is efroneous, for while addressing the issue of fair trial, the Court is not exercising any kind of jurisdiction in equity.

75. In view of the aforesaid conclusions, we direct the State of Biharto transfer the third respondent, M. Shahabuddin, from Siwan Jail, District Siwan to Tihar Jail, Delhi and hand over the prisoner to the competent officer ofTihar Jail after giving prior intimation for his transfer in Delhi. Needless to say, that the authorities escorting the third respondent from Si wan Jail to Tihar Jail would strictly follow the rules applic'able to the transit prisoners and no special privilege shall be extended. The transfer shall take place within a week hence. Thereafter, the trial in respect of pending trials shall be conducted by video conferencing by the concerned trial court. The competent authority in Tihar Jail and the competent authority of the State ofBihar shall make all essential arrangements so that the accused and the witnesses would be available for the purpose of trial through video conferencing. A copy of this order shall forthwith be communicated to the Home Secretary, Government of Bihar, Superintendent of Siwan Jail and the Inspector General, Prisons, Tihar Jail, Delhi. All concerned are directed to act in aid of the aforesaid order as contemplated under Article 144 of the Constitution.

76. We have noted that the High Court of Patna has granted stay in certain proceedings. The High Court is requested 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.

77. In view of the aforesaid analysis, Writ Petition (Criminal) No. 147 of2016 stands disposed of. Similarly, Writ Petition (Criminal) No. 132 of 2016 also stands disposed of except for the prayer seeking direction to register FIR against Shri Tej Pratap Yadav, Health Minster of Bihar and S.P., Police of Siwan District, for which the matter be listed for further hearing at 2.00 p.m. on 21st of April 2017. Nidhi Jain Writ Petitions disposed of. c