West Bengal Post-Poll Violence : Supreme Court Sets Aside HC Order Transferring Trial Of One Case, Says No Proper Service Of Notice To Accused

The Supreme Court on August 9 set aside an order of the Calcutta High Court, transferring the trial commenced at Coochbehar to Special CBI Court at Siliguri in the case lodged in the aftermath of the 2021 West Bengal Legislative Assembly elections for serious offences including murder and rape.The Supreme Court set aside the High Court order on the grounds that there was no proper service of notice to the accused persons in this case.On December 15, 2023, Justice Rajasekhar Mantha of the Calcutta High Court ordered the transfer of trials in a petition filed by the Central Bureau of Investigation after the CBI told the court that the prosecution, its counsel and witnesses faced constant threat and apprehension to life.While transferring the trial, the High Court stated: "This Court finds that despite service of notice, the respondents including the State, complainant and the accused persons are chosen not to be represented before this Court."On August 9, a bench of Justice Abhay Oka and Augustine George Masih heard a special leave petition filed by the accused persons (petitioners) challenging the December 15 order of the high court. Advocate F.I. Choudhary (representing petitioners) told the court that the petitioners were served notices regarding the impugned order of the High Court while they were in judicial custody.Justice Oka asked: “When you[CBI] served notices, the person accused was in jail?” When the advocate (representing CBI) answered in affirmative, Justice Oka remarked: “Then, why didn't you directly serve them a notice? This service of notice cannot be accepted. This is not the way to serve notice! When they are in jail, the notice could have been served through the jail superintendent.”CBI also stated that the notices were also sent to their respective residences and the family members received it.However, Justice Oka did not accept this argument. While disposing of the SLP, the court: “No, we will set aside this order. The court did not serve notices. They sent notice by speedpost to the residential address when the accused were in jail. What is this happening?”On an earlier occasion, the court directed the CBI to file affidavit in regards to the service of notice. Taking note of the affidavit, the court stated: "In the affidavit, it is stated that the notices were ordered to be issued in the case by the Calcutta High Court on 7th September, 2022 and a direction was issued to serve notices by registered speed post. The stand in paragraph 8 of the said affidavit is that the complainant (third respondent herein) and 18 accused were sent notices by Speed post on 28th October, 2022."The Court added: "However, it is an admitted position that the notices were sent to the residential addresses of the appellants and admittedly, the appellants were in custody at that time. Therefore, there was no proper service of notice. Only on this ground, we set aside the impugned order dated 15th December, 2023 and restore CRR No.2987 of 2022 to the file of the High Court at Calcutta."Resultantly, the court restored interim relief, if any granted, till the date of passing of the impugned order of the high court.Case details: Saher Ali Mia & Ors v. Central Bureau of Investigation & Ors, SLP(Crl) No. 1506/2024 (Disposed Of) Citation : 2024 LiveLaw (SC) 578Click Here To Read/Download Order

West Bengal Post-Poll Violence : Supreme Court Sets Aside HC Order Transferring Trial Of One Case, Says No Proper Service Of Notice To Accused

Gursimran Kaur Bakshi

The Court held that the notices sent to the residences of the accused while they were under custody cannot be proper service of notice.

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