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Monday, October 25, 2021

Kamlesh Tiwari murder: SC Judge S.K. Kaul orders transfer of trial after petition by accused

The Supreme Court on Friday ordered the transfer of trial in the case relating to murder of Hindu Samaj party leader Kamlesh Tiwari, reports LiveLaw.

A petition was filed by accused Ashfaq Husen and nine others, who sought transfer of the trial from UP to Delhi, claiming they faced ‘threat to life in Lucknow and a fair trial was unlikely there due to communally charged atmosphere’. Senior Advocate Meenakshi Arora appeared for the petitioners.

A bench of Justice Sanjay Kishan Kaul ordered the trial to be transferred from Lucknow to Prayagraj, and not Delhi as had been requested by the accused.

Kamlesh Tiwari was murdered in Lucknow in October 2019 with stabs and a gun shot for an alleged ‘blasphemous’ comment he made in 2015 in response to a crude jibe by SP leader Azam Khan. In December 2020, the Uttar Pradesh police had filed chargesheet against 13 accused in the case.

The accused were radicalised to kill Kamlesh Tiwari by Maulana Salim Sheikh (24). Key conspirator Rashid Pathan (23) had just returned from Dubai when the plot to murder Kamlesh was hatched in Surat, Gujarat. The actual murder was carried out by Sheikh Ashfaq Hussain and Rashid’s brother Pathan Moinuddin Ahmed.

Granting transfer of cases is relatively rare, and done only under exceptional circumstances. When a transfer request was made by terrorist Abdul Madani in 2000, the SC had denied it stating –

“No universal or hard and fast rules can be prescribed for deciding a transfer petition which has always to be decided on the basis of the facts of each case. Convenience of the parties including the witnesses to be produced at the trial is also a relevant consideration for deciding the transfer petition…..Convenience for the purposes of transfer means the convenience of the prosecution, other accused, the witnesses and the larger interest of the society.

SC had recently refused to entertain controversial ex-Mumbai police commissioner Param Bir Singh’s plea to transfer all criminal cases against him to outside Maharashtra. In 2019, SC had rejected a BJP leader’s plea for transfer of all case filed against him, over a statement against Mamata Banerjee, to one court.

Common citizens are increasingly left puzzled on what parameters are used to exercise their discretionary powers by courts. When jailed journalist Arnab Goswami had approached Bombay HC for bail, the bench had observed he should approach lower courts for bail and it was “loathe to undermine authority of courts below”.

One wonders if the Lucknow court’s confidence has not been undermined with this latest decision by the SC?

It has been 2 years since Kamlesh Tiwari was murdered. No Hindu has tried to storm the police station where the accused are being held, or asked for the accused to be hanged in the streets as is often done by fanatics of the minority community. As of April 2020, 3 out of the 13 accused were out on bail – no Hindu protested that too. Where is the “communally charged atmosphere” that the accused have alleged in their transfer petition?

In such an open-and-shut case, won’t a transfer cause further delays and inconvenience to witnesses? Isn’t the interest of society best served by speedy and deterrent punishment to religious fanatics who brutally killed a man in cold blood in his own house?

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