Calcutta High Court (Appellete Side)
Ajanta Chakraborty vs The State Of West Bengal & Ors on 27 July, 2009
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
Form No. J (1) IN THE HIGH COURT AT CALCUTTA Criminal Revisional Jurisdiction Appellate Side Present:
The Hon'ble Justice Ashim Kumar Roy C.R.R. No. 1460 of 2009 Ajanta Chakraborty versus The State of West Bengal & Ors.
With C.R.R. No. 2027 of 2009 Partha Chakraborty & Ors.
Versus The State of West Bengal & Anr.
For Petitioner : Mr. Debobrata Roy
For Opposite Parties: Mr. Joymalya Bagchi
Mr. Samar Bagchi
Mr. Sourav Chatterjee (in C.R.R. No. 1460/2009)
-And in C.R.R. No. 2027 of 2009-
For Petitioners : Mr. Joymalya Bagchi
Mr. Samar Bagchi
Mr. Sourav Chatterjee
For Opposite Party : Mr. Debobrata Roy
For State : Mr. Tapas Middya (Both in C.R.R. No. 1460/2009 &
C.R.R. No. 2027/2009)
Heard On : July 7th, 2009.
Judgment On : 27-07-2009.
Both C.R.R. No. 1460 of 2009 as well as C.R.R. No. 2027 of 2009 are arising out of the self-same criminal proceeding and the contesting parties are the same. Thus, for the sake of convenience both the matters are taken up for hearing together which in my opinion, would not cause any prejudice to anyone of the parties. The same set of learned lawyers, who are representing the parties have also no objection in this regard.
2. The Criminal Revision No. 1460 of 2009 relates to an application under Section 407 of the Code of Criminal Procedure in which the defacto- complainant of Noapara Police Station Case No. 176 of 2005 which is now pending before the Learned Judicial Magistrate, 2nd Court, Barrackpore being G.R. No. 2080 of 2005 moved this Court for transfer of the said case to the court of any other competent court situated within the Chinsurah Sub Division, District Hooghly, whereas in C.R.R. No. 2027 of 2009 the accused persons moved this Court invoking Section 483 of the Code for expeditious conclusion of the trial.
3. Mr. Debobrata Roy, the learned Counsel, appearing on behalf of the petitioners in support of the application for transfer of G.R. Case No. 2080 of 2005 from the court of the Learned Judicial Magistrate, 2nd Court, Barrackpore to any other competent court situated within the Sub Division, Chinsurah, District Hooghly submitted that the accuseds are very influential persons of the locality and are regularly threatening the defacto-complainant over phone and asking her to withdraw the case and not to depose in the trial and finally on 19th of March, 2009 when she went to the Barrackpore Court to give her evidence in connection with the aforesaid case, she was detained at the Barrackpore Auto Stand by some 4/5 unknown persons, who asked her not to depose in the trial and threatened to kill her and in this regard she sent two separate complaints to the Officer-in-Charge, Barrackpore Police Station as well as to the Mogra Police Station on the self-same day under registered post with A/D. Thus, she seriously apprehends unless the case is transferred to Chinsurah she would not be able to depose in the case freely. In addition to that Mr. Roy submitted most of the witnesses are the residents of Mogra Police Station, Hooghly and it would cause immense hardship to them if they are to attend the Barrackpore court for their examination. Mr. Roy further submitted since 2005 a proceeding under Section 125 of the Code of Criminal Procedure is pending between the parties before the Learned Judicial Magistrate, 3rd Court, Hooghly, where the accused/husband has been regularly appearing, as such if the case is transferred that would not cause any hardship to him.
On the other hand, Mr. Joymalya Bagchi strongly disputed and denied the allegation of threat. According to him those allegations are absolutely false and have been fabricated to create a ground for transfer. He further submitted that Barrackpore Phery Ghat Auto Stand is a thickly populated and over crowded place and as such in broad day light and in busy business hours if the petitioner was actually threatened that could not have missed the notice at least of the passerby and the local shop keepers. He further submitted although it was alleged that she was threatened over phone but no particulars as to such phone calls were disclosed. According to him merely because the proceeding under Section 125 of the Code is pending before the Chinsurah Court and witnesses are from Mogra, the same is no ground for transfer. Lastly, Mr. Bagchi submitted that both the petitioner nos. 2 and 3 are very elderly person and aged about 69 and 60 years, they are also suffering from various old aged diseases, as such if the case is transferred that would cause immense hardship to them.
Mr. Bagchi in support of his submission relied on two decisions, one reported in AIR 1983 SC 292, in the case of Ranjit Singh & Anr. Vs. Popat Rambhaji Sonawane & Ors. and another decision reported in 2004 SCC (Cri) 1327, in the case of Leelawati & Anr. Vs. Ramesh Chand & Ors.
Appearing in support of Criminal Revision No. 2027 of 2009 Mr. Bagchi contended that the aforesaid G.R. Case No. 2080 of 2005 now pending before the Learned Judicial Magistrate, 2nd Court, Barrackpore, where the petitioner no. 1 along with his old aged parents are facing their trial of a charge under Sections 498A/406 of the Indian Penal Code, was the outcome of a FIR registered in August, 2005. Although, charge-sheet was submitted within a few days, sometime in September, 2005 and charge has been framed in November, 2007 but till date not a single witness has been examined. He thus prayed that necessary direction may be passed for expeditious conclusion of the trial.
In reply to the submissions of Mr. Bagchi, Mr. Roy however raised no objection against his prayer for a direction for speedy disposal of the trial but submitted that unless the case is transferred from Barrackpore court to Chinsurah Court it would not be possible for the petitioner to depose in the case, on the face of the threatening held out to her by the persons employed by the accused/husband. Mr. Roy relied on a decision of this Hon'ble High Court in the case of Yashmin Khatoon Vs. State of West Bengal & Ors., reported in 2006 (1) CLJ (Cal) 393.
4. Heard the Learned Advocates appearing for the parties. Considered their rival submissions as well as the materials on record.
5. It is settled law the normal course of thing should not be interfered with and a criminal case ordinarily be tried by the court within whose local limit offence is committed. However, in very exceptional cases the venue of trial may be changed, when it appears to the Court otherwise a fair trial would be jeopardized. In the instant case, transfer has been sought for on the ground of alleged threatening held out to the complainant by the miscreants employed by the accused/husband. A single incident of threat would not be a just ground for transfer of a criminal case from its ordinary place of trial even if the same is found to be true and it would be sufficient to direct the police to extend all possible assistance to the party under threat for their safety and security. Mere allegation that the complainant was threatened by some miscreants employed by the accused at a busy public place at broad day light and at a pick business hours in absence of any independent support is very hard to accept. Be that as it may, the fact remains the complainant, the victim housewife, since 2005, has been living at her parental home at Mogra, Hooghly, which is nearer to Chinsurah Court and as such it would be otherwise expedient in the interest of justice that the trial be transferred to any competent court at Chinsurah. However, this Court cannot afford to ignore the inconvenience and hardship that may be caused to the accused nos. 2 and 3, two elderly persons, if the trial is transferred to a place far away from their ordinary place of residence. In such circumstances, I am of the opinion since the alleged offences are Magistrate triable the accused/opposite party no. 2 and 3 may be exempted from their personal appearance during the day to day trial of the case. Accordingly, I direct if the said accused persons make any application under Section 205 of the Code seeking exemption from their personal appearance in Court during the dates of trial, on an undertaking to the satisfaction of the Court that they would not dispute their identity as the particular accuseds and have no objection if the witnesses are examined in their absence and their lawyer would present in Court on each day of the trial, their such prayer would be allowed by the learned transferee court, except on the dates that may be fixed for their examination under Section 313 of the Code of Criminal Procedure and on the date of the pronouncement of Judgement. Needless to mention it will also be open to the accused persons to seek similar relief on the date fixed for their examination under Section 313 of the Code of Criminal Procedure in terms of the guidelines prescribed by the Hon'ble Supreme Court in the case of Keya Mukherjee Vs. Magma Leasing Ltd. & Anr., reported in (2008) 3 SCC (Cri) 537. I also make it clear if the accused/husband makes any application under Section 205 of the Code, the Learned Magistrate shall consider the same in accordance with law.
Last but not least, the Trial Court is directed to conclude the trial as expeditiously as possible preferably within a year from the date of communication of this order and the trial shall be proceeded on a continuous basis and strictly in terms of Section 309 of the Code of Criminal Procedure.
This application thus stands disposed of.
Criminal Section is directed to deliver urgent Photostat certified copy of this Judgement to the parties, if applied for, as early as possible.
( Ashim Kumar Roy, J. )