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2000 DIGILAW 463 (CAL)

Salil Dutta v. Sajal Kumar Bhowmick

2000-09-07

Debiprasad Sengupta

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JUDGMENT D.P. Sengupta, J. This is an application under section 407 of the Code of Criminal Procedure. 2. The present petitioner was made accused in a case being No. C/1068 of 1993 now pending before the ld. Metropolitan Magistrate, 6th Court, Calcutta under section 500 of the Indian Penal Code. The said proceeding was initiated on the basis of a complaint lodged by the present opposite party No.1. The ld. Chief Metropolitan Magistrate, Calcutta by an order dated 14.9.93 took cognizance of the offence and transferred the case to the ld. Metropolitan Magistrate, 6th Court, Calcutta. Process was issued under section 500 of the Indian Penal Code. The petitioner appeared in the said proceeding through his learned lawyer, namely, Sri Tushar Kr. Sarkar. The petitioner preferred an application in this court being CRR No. 176/99 praying for quashing of the proceeding and alternatively for transferring of the said case. By an order dated 28.7.99 the said application was dismissed by this court. Being aggrieved by the said order the petitioner preferred a Special Leave Petition before the Hon'ble Supreme Court. By an order dated 21.1.2000 the Hon'ble Supreme Court disposed of the said SLP with following observations: "Learned Counsel then submitted that petitioner would be satisfied if the case is transferred to another court, since no advocate is coming forward to appear for the petitioner in the present criminal complaint. This appears to have been not pressed before the High Court. Though no proper avertments and no proper prayer were made in that behalf we permit the petitioner to approach the High Court afresh, if he has got good grounds to satisfy the High Court that a transfer is necessary in the interest of justice." Thereafter the present application under section 407 of the Code of Criminal Procedure was filed by the petitioner in this court. 3. Mr. Joymalya Bagchi, the ld. Advocate appearing for the petitioner submits that the complainant opposite party No.1 in the instant case is a practising advocate of Banks hall Court, Calcutta and he is also a member of the Executive Committee of the Bar Association of the Metropolitan Magistrate Court, Calcutta. The ld. Advocate submits that since the opposite party No. 1/ complainant is a practising advocate of the said court. The ld. Advocate Mr. Tushar kr. The ld. Advocate submits that since the opposite party No. 1/ complainant is a practising advocate of the said court. The ld. Advocate Mr. Tushar kr. Sarkar who was engaged by the present petitioner as his advocate, suddenly returned the brief to the petitioner and informed the learned court that he was retiring from the instant case. It is submitted by the petitioner's ld. Advocate that the ld. Lawyer, ordinarily practising at Bankshall Court, have not only declared that they were unwilling to represent the petitioner, but are openly exhibiting such hostility that it became impossible for any ld. lawyer of the other court to go there and to defend the petitioner in the said case. Mr. Bagchi submits that inspite of best efforts, the petitioner could not arrange for any ld. lawyer of his choice to defend himself in the instant case. The opposite party No.1 by utilising his status as a practising advocate in the Bankshall Court, Calcutta, has created an atmosphere which is most inimical to the conducting of a free and fair trial in the instant case pending before the ld. Metropolitan Magistrate, 6th Court, Calcutta or in the court in any other Metropolitan Magistrate in the Bankshall Court, Calcutta. In such circumstances Mr. Bagchi submits that in the interest of justice and to ensure a fair trial in the instant case, the instant case should be transferred from the court of the ld. Metropolitan Magistrate, 6th Court, Calcutta to any other court of appropriate jurisdiction. 4. Mr. Subir Ganguly, the ld Advocate appearing for the complainant/opposite party No. 1 submits that the present proceeding should not be transferred on the ground as it has been agitated by the accused petitioner. He further submits that the accused petitioner all along was represented by a lawyer. Mr. Ganguly relies upon a judgment reported in AIR 1982 SC 1558 , on a perusal of the said judgment it appears that a case under sections 302 and 392 of the Indian Penal Code was transferred from Jammu to Srinagar on the sole ground that most of the witnesses, who belong to Jammu have already been examined by the trial court and that only witness from Kashmir Division or Delhi remained to be examined. The Hon'ble Apex Court was of the view that this should not be the correct approach to the matter and accordingly the impugned order directing transfer of the case was set aside by the Hon'ble Apex Court. In my opinion, the said judgment was delivered by the Hon'ble Apex Court in the facts and circumstances of that particular case which does not have any application in the present case. Mr. Ganguly next relies upon the judgment reported in 2000 Calcutta Criminal Law Reporter (Cal.) 238. On a perusal of the said judgment it appears that transfer was prayed for in this court on the ground that at the time of attending court the petitioner was ordinarily be some rowdy elements engaged by the opposite party. In such circumstances it was held by the ld. Single Judge of this court that the best course in such cases will be to ensure adequate protective measures being adopted for the safety and security of the subject during the period while he will have to appear before the court in connection with hearing of the case. 5. On a perusal of the entire order-sheet which is annexed to this revisional application it appears from the order dated 19.2.97 that the ld. Advocate of the present petitioner made a prayer before the court that he was retiring from the case. From the order dated 21.3.97 it appears that the accused petitioner appeared before the court and submitted that no advocate in this bar is willing to take the brief and appear on his behalf. In such circumstances it was prayed by the accused petitioner that an advocate may be engaged by the court itself. The said petition was rejected by the learned Magistrate and the next date was fixed on 9.6.97. On 9.6.97 the accused petitioner appeared in person and prayed for appointment of an advocate from the Legal Aid Service, the next date was fixed on 8.7.97 for hearing of the said petition. The said petition was disposed of on 29.7.97 when the accused himself appeared in court and submitted that no advocate is ready to willing to accept his brief. After hearing the parties the ld. Magistrate rejected the petition after observing that he had no authority to appoint any lawyer for the accused. It also appears from the orders of the ld. After hearing the parties the ld. Magistrate rejected the petition after observing that he had no authority to appoint any lawyer for the accused. It also appears from the orders of the ld. Magistrate that the accused petitioner also approached the Legal Aid Service for engagement of an advocate on his behalf but ultimately he could not succeed. From the order dated 10.2.98 it appears that the ld. Magistrate was himself satisfied that the present petitioner was not getting the legal assistance of lawyers. But considering the delay in case and other aspect of the case the ld. Magistrate fixed a date for taking evidence. 6. After going through the entire order sheet of the ld. Magistrate it becomes clear that in spite of best efforts made by the petitioner, he was unable to arrange for a lawyer of his own choice to defend him in the instant case. In my opinion, to ensure a fair trial in the instant case, this is a fit case in which appropriate order of transfer should be passed by this court under section 407 of the Code of Criminal Procedure. 7. In such circumstances I allow this application under section 407 Cr. P.C. and I direct that the present proceeding being No. C/1068 of 1993 under section 500 IPC pending in the court of ld. Metropolitan Magistrate, 6th Court, Calcutta be transferred to the court of ld. Chief Judicial Magistrate at Alipore forthwith. The ld. Chief Judicial Magistrate after receipt of the record of the case shall proceed with the trial and conclude the same with utmost expedition. Office is directed to communicate this order forthwith to the concerned court below. Urgent xerox certified copies of this order may be supplied to the ld. Advocates of the respective parties, if applied for, at an early date. Application allowed.