Calcutta High Court (Appellete Side)
Purnima Sharma @ Punam Sharma vs The State Of West Bengal & Another on 25 February, 2015
Author: Shib Sadhan Sadhu
Bench: Shib Sadhan Sadhu
Form No.J(1)
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Appellate Side
Present:
The Hon'ble Mr. Justice Shib Sadhan Sadhu, J.
C.R.R. No.3706 of 2014 With C.R.R. 375 of 2015 Purnima Sharma @ Punam Sharma... Petitioner Versus The State of West Bengal & Another ...Opposite Parties For the Petitioner : Mr. Rana Mukherjee Mr. Firoj Edulji Mr. Arijit Ganguly (in CRR 3706 of 2014) Mr.Soumyajit Das Mahapatra (in CRR 375 of 2015) For the State : Mr. Manjit Singh Mr.Ranadeb Sengupta (in CRR 3706 of 2014) For the O.P. No.2 : Mr. Biswaranjan Bhakat Mr. Anubrata Santra Heard on : 16.02.2015 Judgment on : 25.02.2015 Shib Sadhan Sadhu, J.
1. Since both these applications under Section 407 read with Section 482 of the Code of Criminal Procedure, 1973 have arisen out of similar facts seeking transfer of the Sessions Case No.10(8) 2014 arising out of Jhargram P.S. Case No.70 of 2014 under Sections 365/367/368 of the Indian Penal Code now pending in the Court of the Learned Additional Sessions Judge, First Court, Jhargram, District: West Midnapore to any other Court of equal or superior jurisdiction outside the district of West Midnapore, they are being decided by this common judgment and order, for the sake of brevity.
2. The aforesaid Sessions case arises out of F.I.R. No.70 of 2014 of Jhargram Police Station on the basis of a written complaint filed by the de-facto complainant Paban Kumar Agarwal alleging that on 25.04.2014, his only son Saurav Agarwal left home at Balaramdihi for business work but no information was received about him till 7.30 p.m. Thereafter, the complainant began to search for his son but could not find him. Then he lodged a missing diary on 25.04.2014 in Jhargram P.S. being Jhargram P.S. G.D. Entry No.1656 dated 25.04.2014. Later on he came to know that his son Saurav was kidnapped by some miscreants on 25.04.2014 from Jhargram town and he apprehended that his son might be in danger. Accordingly, police took up investigation and the dead body of the kidnapped son Saurav was recovered from Ganjam, Orissa. Thereafter, on completion of investigation police submitted charge sheet being No.192 of 2014 dated 26th July, 2014 against five accused persons including the present two petitioners under Sections 364/364A/302/201/120B/379/411 of the IPC and under Sections 25(1-B)(a)/35 Arms Act. That case was committed to the Court of the Learned Additional Sessions Judge, First Court, Jhargram, who framed charge on 12.11.2014 and the case is pending for evidence of witnesses.
3. The facts of the case leading to the Transfer Petitions are as follows:-
i) That no Advocate could appear on behalf of the petitioners from the date of their arrest till the filing of the charge sheet.
The local Bar Association resolved that they would not defend the accused persons and so the accused remained undefended. Even they were not given legal aid from the District Legal Services Authority to move bail application till the submission of charge sheet. The case received wide publicity in the media and some newspapers. The relatives of the petitioners due to prevailing situation outside the Court room of the Additional Chief Judicial Magistrate, Jhargram advised the present advocate on record of the petitioners against defending her keeping in mind the safety of the said Advocate on record.
ii) The petitioners could not obtain the certified copy of the orders passed by the Learned ACJM, Jhargram for moving application under Section 439 Cr.P.C.
iii) There was a gathering of slogan shouting mob outside the Court room on each date of production of the accused persons and they demanded exemplary punishment of the accused persons and that the accused persons be handed over to them for providing instant justice to them. There was imminent danger that the accused persons might be lynched by mob.
iv) The house of the petitioner was fully ransacked by the mob and the household articles were looted. The relatives of the petitioner were so frightened that they could not even go to the local police station to lodge complaint. One of her relation Dwarka Prasad Sharma came from Korba, Chattisgarh and had been to Jhargram Correctional Home on 15th November, 2014 to meet the husband of the petitioner but he was threatened by unknown person. So he returned to Korba and sent a letter on 02.11.2014 by post to the O.C., Jhargram P.S. and to the Superintendent of Police, West Midnapore informing them about the aforesaid incident. So there is ground for reasonable apprehension that the accused persons would never receive a free and fair trial before that Court.
v) The petitioner in C.R.R. No.3706 of 2014 namely Purnima Sharma @ Punam Sharma is lodged in Alipore Womens' Correctional Home as there is no such Home at Jhargram and she is to undertake an audacious journey of more than 200 kilometers on each and every date of production before the Trial Court. She has been suffering from a rare medical disease namely "Myasthenia gravis" which is an either autoimmune or congenital neuromuscular disease that leads to fluctuating muscle weakness and fatigue. The hallmark of "Myasthenia gravis" is fatigability. Muscles become progressively weaker during periods of activities and improved after periods of rest. In such crisis, a paralysis of the respiratory muscles occurs, necessitating assisted ventilation to sustain life. In patients whose respiratory muscles are already weak, crises may be triggered by infection, fever, an adverse reaction to medication, or emotional stress. In such circumstances, it is impossible for the petitioner to undertake the said journey. Both the medical and emotional stress are taking a serious toll on the petitioner and that might ultimately lead to the death of the petitioner.
vi) After commitment of the case, two Advocates i.e. Mr.Santanu Ghosh and Mr. Himel Chetri agreed to defend the petitioner. But they are not of the expected standard to defend the petitioner in such a complicated trial where the maximum punishment is death penalty. The son of the petitioner met with famous Counsel Mr. Sanatan Mukherjee, who after hearing the entire fact situation and circumstances prevailing there expressed his inability to defend the petitioner and so they are not able to be defended by any Advocate of their choice.
vii) The father of the victim is a renowned businessman of Jhargram area and is a very powerful man. The victim was a very popular person and thus an untoward sympathy as well as anguish is there since inception of the case.
4. Mr. Rana Mukherjee, Learned Counsel appearing for the petitioner in C.R.R. No.3706 of 2014 and Learned Counsel Mr. Soumyajit Das Maha Patra appearing for the petitioner in C.R.R. No.375 of 2015 have submitted the following grounds for transfer of the proceedings:-
i) That there is a surcharged environment and there is no conducive atmosphere for free and fair trial.
ii) That the petitioners and other accused persons are not getting the service of legal counsel of their choice to defend themselves.
iii) That the petitioner Punam Sharma is extremely ill and the hostile situation outside the Court room is further telling upon her health.
iv) The machinery of justice is not geared to work in the midst of such hostile condition, which demonstrate want of calm and quiet atmosphere of a fair and impartial trial.
v) That free and fair trial is sine qua non of Article 21 of the Constitution of India. It is trite law that justice should not only be done but it should be seen to have been done.
vi) Since the accused persons cannot secure service of an Advocate of their choice to defend themselves it tantamounts to an infringement of their fundamental right guaranteed under Article 22 (1) of the Constitution of India.
They concludingly submitted that on the backdrop of the surcharged and tensed situation prevailing outside the Court room at Jhargram, the atmosphere for holding a free, fair and impartial trial is wanting and therefore this Court's intervention under Section 407 Cr.P.C. is absolutely necessary to transfer the aforesaid Sessions Case to any other Sessions Court of concurrent / Superior jurisdiction outside the District of West Midnapore.
5. Mr. Ranadeb Sengupta, Learned Counsel appearing for the State, submitted that a report might be called for from the Learned Sessions Judge, West Midnapore as to whether there is any adverse atmosphere in conducting the trial.
6. Mr. Biswaranjan Bhakat, Learned Counsel appearing for the O.P. No.2 submitted that the grounds highlighted by the petitioners in support of their Transfer Applications are baseless and such petitions have been filed as a calculated measure only to protract the disposal of the case and thus those should be rejected.
7. Before entering into the merits of the Transfer Petitions, I would like to say at the very outset that there is no rigid and inflexible rule of test to exercise the power under Section 407 of the Cr.P.C. However, the Hon'ble Supreme Court in a catena of decisions has laid down some guidelines which should be kept in mind while considering an application for transfer of the trial. In the case of Mrs. Maneka Sanjay Gandhi & Anr. Vs. Miss. Rani Jethmalani reported in AIR 1979 SC 468: (1979) 4 SCC 167 held that :
"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 imperilling, 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 circumstances may be myriad and vary from case to case. We have to test the petitioner's grounds on the touchstone bearing in mind the rule that normally he 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."
8. In another case of Abdul Nazar Madani V. State of Tamilnadu and Anr. reported in AIR 2000 SC 2293: (2000) 6 SCC 204, the Supreme Court has observed as follows:
"................The apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary based upon conjectures and surmises. If it appears that the dispensation of criminal justice is not possible impartially and objectively and without any bias, before any court or even at any place, the appropriate court may transfer the case to another court where it feels that holding of fair and proper trial is conductive. 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. The convenience of the parties does not necessarily mean the convenience of the petitioners alone who approached the court on misconceived notions of apprehension. Convenience for the purposes of transfer means the convenience of the prosecution, other accused, the witnesses and the larger interest of the society."
9. Let me now examine the contentions raised by the Learned Counsel for the parties in the light of the principle enumerated in the aforesaid decisions, in order to find out whether a case for transfer of the Sessions Case from the Court at Jhargram is made out so as to warrant interference by this court invoking the power under Section 407 Cr.P.C. including the inherent power under Section 482 of the Code.
10. I have gone through the pleadings made in the Transfer Petitions and the Annexures and also through the certified copy of the order sheet of the relevant case filed by the O.P. No.2.
11. I find that the present petitioners never made any allegation before the Learned Trial Judge that the atmosphere in the Court precincts was so surcharged or hostile that their fair and impartial trial would be seriously impaired, or that they had reasonable apprehension in their mind of not getting a fair and impartial trial. They also did not ventilate any grievance that they could not appoint Advocate of their choice or that they appointed an Advocate of their choice but he was threatened not to act on their behalf. On the contrary, it is reflected that on the date of framing of charge, i.e. on 12.11.2014 they were represented by Advocates and the charge was framed after hearing the learned P.P.-in- Charge and their Learned Advocate. It further appears from the order sheet dated 10.12.2014 that the Learned Advocates namely Mr. Santanu Ghosh and Mr. Himel Chetri filed an application withholding their vokalatnama from the case as they were not inclined to defend the accused and on being asked the accused submitted that they would appoint their Advocate according to their choice and for that reasons they prayed for time and the Court accordingly allowed time for appointment of lawyer on behalf of the accused.
12. The Annexures at Page 33 and 34 of C.R.R.375 of 2015 which are photocopies of newspaper cutting show that the accused persons only bided time for appointment of advocate of their choice and they refused to be defended by the Advocate to be provided from Legal Aid Service. Remarkably there is no whisper in this Annexures and also in the Annexures to the CRR 3706 of 2014 (Pages 43, 44 and 45) about the surcharged or tensed atmosphere, gathering of slogan shouting mob, threatening to kill the accused persons etc. as alleged by the petitioners.
13. Having considered the rival claims of both the parties on the touchstone of the aforesaid broad parameters, I am of the view that the apprehension entertained by the petitioners that the trial of the case at Jhargram may not be free and fair, resulting in miscarriage of justice is misplaced and cannot be accepted. From the materials on record I am unable to draw any inference that there exists a surcharged atmosphere so as to render holding of a fair and impartial trial impossible or that the apprehension of the petitioners of not getting a fair and impartial trial is reasonable.
14. For the aforestated reasons, I do not find any merit in the Transfer Petitions for transfer of the trial of the Sessions Case No.10(8) of 2014 from Jhargram to any other place. Accordingly, the prayer is declined. The Learned Trial Court is directed to proceed with the case expeditiously.
15. Criminal Section is directed to deliver urgent photostat certified copy of this judgment to the parties, if applied for, as early as possible.
(Shib Sadhan Sadhu, J.)