Calcutta High Court (Appellete Side)
The State Of West Bengal vs Ashok Shah Montu & Ors on 5 August, 2019
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10.
05.08.2019
F.B. Ct. No. 40.
C.R.R. 1833 of 2019 The State of West Bengal Vs. Ashok Shah Montu & Ors.
Mr. Saswata Gopal Mukherjee, Ld. P.P, Mr. Sudip Ghosh, Mr. Bitasok Banerjee ..... For the Petitioner.
Mr. Bikash Ranjan Bhattacharjee, Mr. Rakesh Sharma, Ms. Meenal Sinha ..... For the Opposite Parties.
The State has filed supplementary affidavit. Let it be kept with the record.
The petitioner before this Bench is the State of West Bengal.
This is an application filed by the petitioner under Section 407 read with Section 482 of the Code of Criminal Procedure expressing its apprehension that the State might not get the fair and impartial trial in the Court where the trial 2 is pending and prays for transferring the case from the Court of Learned Additional District & Sessions Judge, Fast Track, Court-II, City Sessions Court, Bichar Bhawan, Calcutta to any other competent Court. The trial of Sessions Case being No. 111 of 2015 arising out in connection with Girish Park Police Station Case No. 127 dated 18.04.2015, under Sections 147/148/149/353/427/307 of the Indian Penal Code, 1860, and read with Sections 25/27 of the Arms Act and read with Sections 3/4/5 Explosive Substance Act is continuing in the Court of above mentioned Learned Additional District and Sessions Judge.
Heard the submissions advanced by Learned Public Prosecutor, Mr. Saswata Gopal Mukherjee along with Learned Counsel, Mr. Sudip Ghosh in full and also heard the submission made by Learned Senior Counsel, Mr. Bikash Ranjan Bhattacharjee appearing for the opposite parties.
Before delving deep into the matter, I would like to mention the order of the Hon'ble Supreme Court dated 01.04.2019 passed in connection with Special Leave to Appeal (Crl.) No. 10572 of 2018. The Hon'ble Apex Court has been pleased to direct the trial Court to complete the trial expeditiously and in any case within six months from date. In 3 the second paragraph of the said order the Hon'ble Apex Court has been pleased to state that if the trial remains pending beyond the time frame fixed by the Apex Court, the petitioner may make an application for bail.
During the course of hearing, the Learned Public Prosecutor appearing for the State expresses the apprehension of the State that the State may not get proper and fair justice from the learned court below. The apprehension of the State is that on the three occasions at the time of recording the evidence of the prosecution witnesses, the recording of evidence was not done properly and the incorrect recording of evidence of witnesses was brought to the notice of the learned trial judge but the learned trial judge failed to observe the provisions as contained in Sub-Section 2 of Section 278 of the Code of Criminal Procedure.
The second grievance of the prosecution is that the learned trial judge perhaps due to the direction of the Hon'ble Supreme Court was in hurry and that is why he is not giving opportunity to the prosecution to bring the witnesses for examination to prove prosecution case and it will prejudice the interest of the prosecution.
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The 3rd grievance of the prosecution is that the procedure for procuring the attendance of witnesses has not been exhausted by the learned trial judge.
These apprehend the prosecution that it would not get justice.
On the other hand, learned counsel appearing for the State submits that the learned court is not in a position to interpret the order or direction passed by the Hon'ble Apex Court. It is admitted that there is a direction to conclude the trial expeditiously within a period of six months from 01.04.2019. Learned Public Prosecutor has drawn the attention of the Court and submitted that the word "shall" has not been used in the order passed by the Hon'ble Apex Court. As such it is not mandatory on the part of the learned judge to conclude the trial within six months from the date of the order.
I do not share the view as expressed by Learned Public Prosecutor. Admittedly the Hon'ble Apex Court directed the learned trial court to conclude the trial within six months.
Having regard to the materials placed on record and considering the submissions made by the learned counsel 5 appearing for the parties, it reveals that the learned trial judge is trying to give effect to the direction passed by the Hon'ble Apex Court. I think the apprehension of the prosecution that the prosecution will not get proper justice and fair trial from the learned judge has no reasonable basis at all. The grievances of the prosecution as pointed out before this Court may be solved if the learned judge is directed to comply with the provision as mentioned in Section 278(2) of the Code of Criminal Procedure if any objection is raised regarding the correctness of the evidence recorded by the learned trial judge.
Learned trial court is requested to comply with the provisions as contained in Sub-Section 2 of Section 278 of the Code of Criminal Procedure.
Learned trial judge is requested to ensure that the processes regarding the procurement of the attendance of the witnesses are exhausted.
In the instant case, I have been told that tomorrow i.e. on 6th of August, 2019 has been fixed by the learned trial judge for examination of the accused under Section 313 of the Code of Criminal Procedure.
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In view of above, the order of examination of the accused under Section 313 of Cr. P.C is hereby set aside.
Learned trial judge is requested to give the prosecution opportunity for examination of the remaining witnesses and the entire process for bringing the prosecution witnesses are completed. At the same time, the prosecution is directed to take proper and effective steps so that the learned trial judge may comply with the direction of the Hon'ble Apex Court for conclusion of trial within the time as framed by the Hon'ble Apex Court.
With the above observations, the application being C.R.R. 1833 of 2019 is disposed of.
Let photostat plain copies of this order duly countersigned by the Assistant Registrar (Court) be given to the parties on usual undertakings.
( Madhumati Mitra, J. )