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2000 DIGILAW 126 (CAL)

Shyamsundar Ghosh v. State of West Bengal

2000-03-13

AMIT TALUKDAR

body2000
JUDGMENT For analogous Trial of Sessions Trial No.1 of 1999 pending in the Court of the learned Additional Sessions Judge, Hooghly and Sessions Case No. 237 of 1999 pending in the Court of the learned Additional Sessions Judge, First Court, Hooghly the petitioner has moved this Court under Section 407 of the Code of Criminal Procedure. It has been the submission of Shri Ashimesh Goswami appearing with Smt. Tapati Chatterjee and Smt. Minati Gomesh has submitted that the petitioner is the de facto complainant in Sessions Trial No.1 of 1999 which arose out of Goghat Police Station Case No. 55 dated 23.7.93 under Sections 302, l20B of the Indian Penal Code plus Section 25 of the Arms Act. It is presently pending before the learned Additional Sessions Judge, Hooghly after framing of charge. Whilst, according to Shri Goswami, the petitioner and some others are arrayed in S. C. Case No. 237 of 1999 as an accused which in turn arose from Goghat Police Station Case No. 56 dated 23.7.93 under Sections 147, 148, 149, 302, 379 of the Indian Penal Code which is pending before the learned Additional Sessions Judge, 1st Court, Hooghly. He has submitted that both Sessions Trial No. 1 of 1999 and Sessions Case No. 237 of 1999 are case and counter-case respectively of an incident of 23.7.93. Shri Goswami has prayed for trial of both the cases one by one. 2. The learned Additional Public Prosecutor assisted by the learned Junior Government Advocate has pointed out that this petition has been given the nomenclature and "an application for transfer of a case under Section 407 of the Criminal Procedure Code, 1973" and it is merely a petition for transfer and as such without resorting to the proviso of sub-section (2) of Section 407 of the Code of Criminal Procedure this petition was not maintainable. 3. I have considered the submission of the parties and have gone through the materials-on-record. Although on principle I fully agree with the objection taken by the learned Additional Public Prosecutor with regard to non-compliance of first proviso of sub-section (2) of Section 407 of the Code of Criminal Procedure but I cannot subscribe to this view of the learned Additional Public Prosecut0f since in effect Shri Goswami has prayed for trial of two cases which are case and counter-case of one another analogously. This petition is not one such petition for transfer simpliciter as contemplated under the provisions of Section 407 of the said Code. For an error in the nomenclature of the petition and quoting of a wrong section should not be the sole ground for throwing aside the same if the pith and substance of a tenor of the petition otherwise discloses the correct prayer. Pebbles of technicalities cannot obstruct the flow of the fountain of Justice. The stream of the fountain is always forceful enough to make its way unhindered even by a rock of technicality. 4. This Court would be shutting its eyes to the clarion call of Justice if such technicalities are taken into account. 5. It is now settled principle of law crystalised in the form of several decisions that a case and a counter-case has to be tried in quick succession of one another so as to stave the danger of disclosure of defence in either of the case. A counter and a cross case are counter versions of two cases arising out of the same transaction and the criteria to be satisfied is that as to whether it is in respect of the same occurrence that the two cases as emerged and it has to be further established that the counter-cases arise out of the same incident having counter versions of each other. I am emboldened by the decision of the Supreme Court of (1) Kabol Kishore v. Suraj Bhan as reported in AIR 1980 SC 1780 . The instant cases being counter versions of each other, it is apposite that the same should be tried together. Accordingly, I direct that both the Sessions Trial No.1 of 1999 and Sessions Case No. 237 of 1999 should be tried analogously by the same Judge and the Sessions Case No. 237 of 1999 will be transferred and heard together with Sessions Trial No.1 of 1999 by the learned Additional Sessions Judge (Special Court, Hooghly) from the stage where each of the said cases were at the time of moving of this application. The learned Additional Sessions Judge (Special Court, Hooghly) will conclude the Trial of both the Sessions Trial Case No.1 of 1999 and Sessions Case No. 237 of 1999 in quick succession of each other and after conclusion of the first Trial shall keep his judgment reserved till the other Trial is concluded and thereafter, on conclusion of both the Trials respective judgments each of the Trial will, thereafter I be pronounced. 6. Before parting I would like to impress upon the learned Additional Sessions Judge that although both the Sessions Trials are of 1999 yet the incident is of 1993, as such this Court would expect that the Trials are concluded with utmost despatch without any unnecessary loss of time. The Revisional Application is accordingly allowed. There will be no order as to costs.