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2002 DIGILAW 707 (CAL)

Mohan Sharma v. State of West Bengal

2002-11-29

PROVANDU NARAYAN SINHA

body2002
JUDGMENT This is an application under Section 407 of Cr.P.C. filed by the petitioners praying for transfer of Sessions Case No.7 of 2002 from the Court of learned Sessions Judge, Darjeeling to a competent Court of coordinate jurisdiction beyond the District of Darjeeling. 2. The petitioners case, in brief, is that they have been arraigned as accused persons in connection with Kurseong P.S. Case No. 9 dated 10.2.2001 under Sections 120B/34/302/307/326 of Indian Penal Code read with Sections 25/27/29/35 of the Arms Act and Sections 3 and 4 of the Explosives Substance Act read with Section 3 of the Prevention of Damage to Public Property Act. In the instant case there was an attempt made on the life of Shri Subhas Ghishing; Chairman of the Darjeeling Gorkha Hill Council (hereinafter called as DGHC) and due to this supporters of Gorkha National Liberation Front (hereinafter called as GNLF) started violent agitation in the District of Darjeeling as a result of which normal life was completely dislocated. They in course of their appearance before the Court below found it difficult to appoint counsels to appear on their behalf due to the pressure exerted on the Advocates of the District of Darjeeling by the supporters of Shree Ghishing. The investigating agency after completing investigation filed charge sheet No. 17 dated 11.5.2001. The petitioners filed application before the High Court praying for their release on bail and the High Court was pleased to direct release of the petitioners on bail. Before their physical release could be effected on the basis of bail bonds, State of West Bengal moved an application before the Hon’ble Supreme Court praying for cancellation of their bail. 3. In course of hearing of the special leave petition the Supreme Court of India called for case diary of the Kurseong P.S. Case No.9 of 2001 vide order dated 24.9.2001 and the learned S.D.J.M. Kurseong directed the Court Inspector to produce the case diary before the Supreme Court. Thereafter, on several occasions copies of documents intended to be relied upon by the prosecution could not be supplied to the petitioners as the case diary had been sent to the Supreme Court. The prosecution started exerting tremendous pressure upon the S.D.J.M., Kurseong for commitment of the case to Court of Sessions. Thereafter, on several occasions copies of documents intended to be relied upon by the prosecution could not be supplied to the petitioners as the case diary had been sent to the Supreme Court. The prosecution started exerting tremendous pressure upon the S.D.J.M., Kurseong for commitment of the case to Court of Sessions. Learned S.D.J.M. vide order dated 14.12.2001 held that commitment of the case was not possible as copies required to be supplied to the accused persons under Section 207 of Cr.P.C. cannot be supplied to the petitioners as the case diary was lying before the Supreme Court. In spite of that the S.D.J.M., Kurseong by his order dated 16.2.2002 committed the case to the Court of Sessions without complying with the provisions of Section 207 of Cr.P.C. The petitioners were released on bail after the Supreme Court dismissed the special leave petition on 4.4.2001. 4. The petitioners fear and believe that they may not receive fair and impartial trial in any Court situated within the District of Darjeeling as the administrative machinery is in cohorts with Subhas Ghishing shall undertake all efforts to obtain conviction of the accused persons in connection with the instant case. They also fear that the Courts of law may not also be immune from illegal pressure which may be exerted by the District Administration. Majority of the prosecution witnesses reside equity distant between the place of trial and Jalpaiguri and if the case is transferred to Jalpaiguri the witnesses would not be inconvenient due to such transfer. In the circumstances stated above the petitioners pray for transfer of the Sessions Case No.7 of 2001 from the Court of the learned Sessions Judge, Darjeeling to a competent Court of co-ordinate jurisdiction beyond the Distict of Darjeeling. 5. Appearing for the petitioners Mr. Bose and Mr. Mukherjee contended that the District Administration in order to appease the sentiments of supporters of GNLF started indiscriminate arrest of persons who held political views contrary to GNLF whose leader is Shree Subhas Ghishing. Omraj Kotwal, the accused obtained bail from the Hon'ble High Court but he could not be released due to reluctance of registered or local surety to stand as surety on his behalf. It was learnt that due to the threats given by the supporters of GNLF nobody was willing to stand as surety. Omraj Kotwal, the accused obtained bail from the Hon'ble High Court but he could not be released due to reluctance of registered or local surety to stand as surety on his behalf. It was learnt that due to the threats given by the supporters of GNLF nobody was willing to stand as surety. Ultimately the Hon'ble High Court passed order for release on bail to the satisfaction of learned S.D.J.M., Siliguri. Gunjay Lama after arrest was produced before the learned S.D.J.M., Kurseong on 18.3.2001 and after recording his confessional statement he was remanded to judicial custody. But, thereafter, on the prayer of investigating officer the Learned Magistrate sent him to police custody for three days illegally. The petitioners were granted bail by the Hon’ble High Court and the State Government preferred special leave petition before the Hon'ble Supreme Court for cancellation of their bail bond. In view of the order of the Supreme Court the case diary of the Kurseong P.S. Case No.9 of 2001 was sent to the Supreme Court. 6. They contended that in the meantime the prosecution started exerting pressure upon the learned S.D.J.M. for commitment of the case as charge-sheet was submitted. The S.D.J.M. by his order dated 14.12.2001 held that commitment was not possible as copies required to be supplied to the accused persons under Section 207 Cr.P.C. cannot be supplied as the case diary was lying before the Hon'ble Supreme Court. In spite of that the learned S.D.J.M. overruling his order dated 14.12.2001 committed the case to the Court of Sessions vide order dated 16.2.2002. The case was committed to the Court of Sessions illegally without complying with the provisions of Section 207 of Cr.P.C. as on that date the Learned Magistrate observed that copies as far as readily available are tendered to the accused persons. It shows that all the copies required to be served to the accused persons under Section 207 of Cr.P.C. were not supplied to the accused persons. The Learned District Judge, Darjeeling vide his Memo No.51 dated 2.2.2002 informed the S.D.J.M., Kurseong that as per principle the matters viz. the trial, commitment and other matters be dealt with expeditiously where the accused persons are in custody. After receiving such instruction from the District Judge, the learned S.D.J.M. illegally committed the case to the Court of Sessions vide order dated 16.2.2002. the trial, commitment and other matters be dealt with expeditiously where the accused persons are in custody. After receiving such instruction from the District Judge, the learned S.D.J.M. illegally committed the case to the Court of Sessions vide order dated 16.2.2002. The unnatural haste shown by the judicial authority indicates that the District Administration of Darjeeling and the State Government exerted pressure on the judicial authority. Out of the 75 witnesses 30 witnesses are located closer to Jalpaiguri than to Darjeeling and if the Sessions case is transferred to Jalpaiguri there would be no inconvenience to the witnesses. 7. They further contended that the petitioners and other accused persons are finding it difficult to appoint counsels to appear on their behalf due to the pressure exerted on the Advocates of the District of Darjeeling by the supporters of GNLF. The petitioners would not receive fair and impartial trial in the District of Darjeeling. Continuance of the aforesaid criminal case before the Court of the Learned Sessions Judge, Darjeeling would lead to miscarriage of Justice. Due to the tremendous pressure exerted by the District Administration upon the Courts the petitioners would be deprived of impartial trial. The petitioners also would be deprived of the services of competent counsels in view of threats made by supporters of GNLF. If the Sessions case is allowed to continue at Darjeeling the accused persons would find it difficult to put up proper defence in the course of trial. Section 407 of Cr.P.C. was enacted to provide protection to accused persons who feel that they are being persecuted by the executive machinery. It is manifestly clear that the District Administration and the State Government intend to obtain conviction of the accused person by hook or crook. 8. It was further contended by them that each and every accused has a right to defend himself and to engage competent lawyer to defend his case. The learned District Judge, Darjeeling vide his Memo No.51 dated 2.2.2002 informed the learned S.D.J.M., Kurseong to expedite commitment. 8. It was further contended by them that each and every accused has a right to defend himself and to engage competent lawyer to defend his case. The learned District Judge, Darjeeling vide his Memo No.51 dated 2.2.2002 informed the learned S.D.J.M., Kurseong to expedite commitment. After receiving such instruction from the learned District Judge the learned S.D.J.M. vide his order dated 16.2.2002 committed the case to the Court of Sessions without supplying copies of all the papers which were required to be supplied under Section 207 of Cr.P.C. The order of the learned Sessions Judge dated 10.4.2002 and 24.4.2002 reveal that the accused persons who are in custody submitted a prayer before the learned Sessions Judge to appoint some Senior Lawyer to defend their case but no defence counsel is appearing to defend the accused persons. The order sheets reveal that the accused persons submitted before the learned Sessions Judge that no lawyer is coming forward to defend the accused out of fear of some political organisation of the hill. After the learned Sessions Judge requested the District Magistrate, Darjeeling to arrange a defence counsel to defend the accused persons, one lawyer namely Narayan Chhetri is appearing for the accused person who are in custody. But the petitioners who are on bail apprehend that due to political pressure by the supporters of GNLF they would be denied at the time of trial to defend their case by a competent counsel. Therefore, to provide fair and impartial trial to the accused persons the Sessions Case No.7 of 2002 now pending before the Court of learned Sessions Judge, Darjeeling should be transferred to a competent Court of Sessions beyond the District of Darjeeling. 9. Mr. Balai Roy, learned Advocate General appearing for the State contended that there is no ground at all for transfer of the Sessions Case No.7 of 2002 from the Court of the learned Sessions Judge, Darjeeling to any other Sessions Court beyond the District of Darjeeling. The accused persons who are on bail have engaged their lawyer. The accused persons who are in custody were undefended during initial stage but now they are defended by Sri Narayan Chhetri, Advocate who is appearing as State defence counsel. The other grounds of transfer of the Sessions case except the ground of difficulty to appoint counsels to appear on their behalf have no force at all. The accused persons who are in custody were undefended during initial stage but now they are defended by Sri Narayan Chhetri, Advocate who is appearing as State defence counsel. The other grounds of transfer of the Sessions case except the ground of difficulty to appoint counsels to appear on their behalf have no force at all. If the accused persons were not• supplied all the copies of relevant papers and documents as required under Section 207 of Cr.P.C., they are entitled to draw attention of the learned Sessions Judge regarding copies which were not supplied to them. Learned Public prosecutor, thereafter, would take steps for supplying copies to the accused persons according to the instruction of the learned Sessions Judge and such copies would be supplied to them before consideration of charge. Commitment of a case without supplying all the copies of papers and documents does not vitiate the trial. 10. Mr. Roy further contended that the subsequent order of the learned S.D.J.M. dated 16.2.2002 by which he committed the case to the Court of Sessions does not amount to review of his earlier order dated 14.12.2001. The learned Magistrate cannot commit a case to the Court of Sessions without supplying copies of relevant papers and documents to the accused persons as laid down in Section 207 Cr.P.C. Order dated 14.12.2001 of the learned S.D.J.M. reveals that copies were not ready and so the case was not committed to Court of Sessions. Order dated 16.2.2002 reveals that copies as far as available were tendered to the accused persons and thereafter the case was committed to the Court of Sessions. The direction of the learned District Judge vide his Memo No.51 dated 2.2.2002 does not indicate that the learned District Judge directed the learned S.D.J.M., Kurseong to commit the case without complying with the provisions of law. It is clear that the learned District Judge only informed the learned S.D.J.M. the principles laid down by the Apex Court of India for guidance of the subordinate Courts in the matter of trial where the accused persons are languishing in jail for a long time. There is no fear at all that the petitioners and other accused persons would not receive fair and impartial trial in the Court of the learned Sessions Judge at Darjeeling. Most of the witnesses are located within the District of Darjeeling. There is no fear at all that the petitioners and other accused persons would not receive fair and impartial trial in the Court of the learned Sessions Judge at Darjeeling. Most of the witnesses are located within the District of Darjeeling. Therefore, there is no ground for transfer of the Sessions Case No.7 of 2002 from the Court of learned Sessions Judge, Darjeeling to any other competent Sessions Court beyond the limits of Darjeeling District. 11. After hearing the submissions of the learned Advocates of both parties and going through the materials-on-record I find that except the ground of difficulty to defend the accused persons or difficulty to appoint counsels to appear on behalf of the accused persons in the above stated Sessions case there is no other valid ground for transfer of the Sessions case from the Court of the learned Sessions Judge, Darjeeling to any other competent Sessions Court beyond the District of Darjeeling. The difficulty faced by accused Omraj Kotwal in furnishing bail bond during investigation stage is not at all a ground for transfer of the Sessions case. The order of the learned S.D.J.M. sending Gunjay Lama to police custody for three days after his order of jail custody cannot be regarded as illegal at all. The Supreme Court in the case of Kosanapu Ramreddy v. State of Andhra Pradesh & Ors. reported in 1994 Cri. L.J. 2121 observed that an accused may be sent to police custody from jail custody or vice versa but such conversion of custody must be within a period of 15 days referred to in Section 167 (2) of the Cr. P.C. 12. The order of learned S.D.J.M., Kurseong dated 16.02.2002 committing the case to the Court of Sessions cannot be regarded as review of his own earlier order dated 14.12.2001. It is well known that a case is committed to the Court of Sessions under Section 209 of Cr.P.C. after complying with provisions of Sections 207 and 208 of Cr.P.C. regarding supply of copies of relevant papers and documents to the accused which the prosecution wants to rely at the time of trial. The order of learned S.D.J.M. dated 14.12.2001 reveals that copies were not ready and as such he did not commit the case to the Court of Sessions. The order of learned S.D.J.M. dated 14.12.2001 reveals that copies were not ready and as such he did not commit the case to the Court of Sessions. Order of learned S.D.J.M. dated 16.2.2002 reveals that copies of papers as far as readily available were tendered to the accused person and thereafter, he committed the case to the Court of Sessions. The action of the learned S.D.J.M. cannot be regarded as illegal or review of earlier order. Commitment of a case without supplying all the copies of papers and documents does not vitiate the trial. At best, it is an irregularity which does not vitiate the trial and the irregularity is curable by supplying copies of all relevant papers and documents to the accused person which the prosecution wants to rely in this case at the time to trial before charge by the learned Sessions Judge through the learned public prosecutor. 13. The ground to transfer that the District Administration exerted tremendous pressure on judiciary and that the accused persons feel and believe that they will not receive fair trial in any Court of Darjeeling District have no basis or foundation at all and the arguments submitted by the learned Advocates for the petitioners in this respect are not acceptable. Independent judiciary is the strongest pillar of Indian Constitution and democracy in this vast country. Judiciary is independent and is not dependent at all upon the executive and State Administration. It is the dictum of the highest Court that the judiciary shall act without fear and favour. Courts are impartial and unless there is cogent and convincing evidence before the Court no person can be convicted. District Administration of Darjeeling and State Administration has no power or capacity at all to exert pressure on District Judiciary of Darjeeling to obtain conviction of accused person by hook or crook. Charge has not yet been framed and no evidence has been laid before the learned Sessions Judge, then how the petitioners can feel that the case would end in their conviction. These grounds are baseless having no foundation and such grounds cannot be accepted at all. 14. The ground that at least 30 witnesses reside outside the jurisdiction of Darjeeling District is not the ground of transfer of the Sessions case. These grounds are baseless having no foundation and such grounds cannot be accepted at all. 14. The ground that at least 30 witnesses reside outside the jurisdiction of Darjeeling District is not the ground of transfer of the Sessions case. It is the duty of the witnesses to attend Court, receiving summons and the witnesses are to attend Court at the place where the trial would commence. 15. The administrative circular of the learned District Judge vide Memo No. 51 dated 2.2.2002 to the learned S.D.J.M., Kurseong does not indicate that the learned District Judge directed the learned S.D.J.M. to commit the case forthwith. The said administrative order reveals that the learned District Judge only informed the learned S.D.J.M. the guidance of the Supreme Court of India relating to trial and other matters where the accused persons are in custody. It is desirable that where the accused persons are in custody their trial should be given preference and expedited in comparison to the accused persons who are on bail. 16. The only ground which requires consideration is non-availability of competent counsels or Advocates to defend the accused persons. The orders of the learned Sessions Judge dated 10.4.2002 and 24.4.2002 (copy of which were produced before me by the learned Advocates of the petitioners) reveal that the accused persons submitted the petition before the learned Sessions Judge for appointment of defence counsel and in the petition the accused persons stated that no lawyer is coming forward to defend the accused 'persons out of fear of some political organisation of the hill. As none was appearing to defend the accused persons the learned Sessions Judge by his order dated 24.4.2002 requested the District Magistrate, Darjeeling to arrange defence counsel for defending the accused persons. Thereafter, one Advocate namely Shri Narayan Chhetri appeared on behalf of the accused persons who are in jail custody. It has been submitted before me by the learned Advocates for the petitioners that Narayan Chhetri, a Junior Lawyer is not competent Advocate to defend the accused persons in such an important case under Section 302 of I.P.C. along with other sections and in which there is involvement of political parties also. It has been submitted before me by the learned Advocates for the petitioners that Narayan Chhetri, a Junior Lawyer is not competent Advocate to defend the accused persons in such an important case under Section 302 of I.P.C. along with other sections and in which there is involvement of political parties also. It has been also submitted before me that the petitioners who are now on bail may also face difficulty in defending themselves at the time of trial as due to the threat of supporters of GNLF none would appear to defend them during trial. The submissions of the learned Advocates of the petitioners as well as the mention of threat of particular political parties disclosed by the petitioners before the learned Sessions Judge indicate that supporters GNLF are very much active in the hill area. 17. There are indications from the papers as well as from the copy of the order of the learned Sessions Judge that due to threat of supporters of the political party of the hill area the lawyers are not appearing for the accused persons to defend them. Indian criminal jurisprudence ensures that no person should be put into trial of a sessions case without affording him opportunity of defending himself. Each and every accused has a right to defend himself by engaging a competent lawyer in a criminal case. Article 22 of the Constitution secures right of every citizen to defend himself by engaging a competent lawyer of his choice. In such a Sessions case under Section 302 of I.P.C. it is desirable that the accused persons should have the opportunity to defend themselves by engaging competent counsels on their behalf. It appears from the facts and circumstances stated above that the accused persons particularly the petitioners may not engage counsels on their behalf at the time of trial if the trial in Sessions Case No.7 of 2002 commences in the Court of any Sessions Court in the Darjeeling Hill area. 18. The words ‘expedient for the ends of justice’ carries great significance and it indicates that its scope is very wide to include even the grounds outside the other clauses which may indicate the necessity of a transfer to secure justice and a fair trial. 18. The words ‘expedient for the ends of justice’ carries great significance and it indicates that its scope is very wide to include even the grounds outside the other clauses which may indicate the necessity of a transfer to secure justice and a fair trial. Transfer is made not because the petitioner will not have a fair and impartial trial, but because the petitioner has reasonable and bona fide apprehension that he will not have a fair and impartial trial. It has been transpired from the materials-on-record including the copy of orders passed by the learned Sessions Judge, Darjeeling that the petitioners are not getting lawyers to defend themselves and it has been established that criminal lawyers are not willing to act for the accused petitioners for fear of incurring displeasure of a particular political party whose influence is tremendous in the hill area of Darjeeling. It appears that a fear psychosis is prevailing in the Darjeeling hill area created by the supporters of GNLF who passed a mandate to the lawyers not to appear for the accused persons in this case. Failure of accused persons to engage lawyers for them is a good ground for transfer of a Sessions case. 19. In India, in a criminal trial an accused is presumed to be innocent unless the prosecution establishes the charges against him beyond all reasonable doubts. Our Constitution ensures right of every citizen to defend himself in a criminal trial by engaging a competent lawyer of his choice. All that is desirable in a Sessions case of such importance that each and every accused should get fair and impartial trial. Law does not prescribe that a person should be convicted of the charges without affording him reasonable opportunities of defending himself in the criminal trial by engaging a lawyer. Law in our country does not prescribe a trial which is nothing but mockery. Our Constitution ensures fair and impartial trial for each and every accused. It appears to me that if the Sessions Case No.7 of 2002 is allowed to be continued at Darjeeling accused persons and petitioners will be denied fair and impartial trial. 20. The Sessions case could have been transferred to Siliguri as that place is convenient for journey from all angles. It appears to me that if the Sessions Case No.7 of 2002 is allowed to be continued at Darjeeling accused persons and petitioners will be denied fair and impartial trial. 20. The Sessions case could have been transferred to Siliguri as that place is convenient for journey from all angles. But Siliguri is also within the District of Darjeeling and lawyers of Siliguri often go to the District Court at Darjeeling and appear there in different cases. If any lawyer appears in this case to defend the petitioners he may become target of GNLF activists and the wrath of GNLF supporters may fall upon him prompting them to take vengeance against him. Moreover, Siliguri is within the District of Darjeeling and influence of GNLF supporters at Siliguri cannot be ignored. A fair and impartial trial at Siliguri may not be expected. Therefore, considering all aspects and considering the present atmosphere and situation prevailing in the District of Darjeeling it would be proper in the interest of justice to transfer the Sessions Case No.7 of 2002 now pending in the Court of the learned Sessions Judge at Darjeeling to the Court of the learned Sessions Judge, Jalpaiguri for trial by a competent learned Additional Sessions Judge, if the learned Sessions Judge, Jalpaiguri himself does not find time for continuing with the trial. 21. In view of the discussions made sbove the petition filed by the accused petitioners under Section 407 of Cr.P.C. is allowed and the revision is disposed of. The Sessions Case No.7 of 2002 now pending in the Court of the learned Sessions Judge at Darjeeling is transferred to the Court of the learned Sessions Judge, Jalpaiguri for trial either by himself or by competent Additional Sessions Judge at Jalpaiguri. Learned Sessions Judge, Darjeeling is directed to send the case records of Sessions Case No.7 of 2002 along with other papers, alamat, materials etc. to the-Court of the learned Sessions Judge, Jalpaiguri for trial as indicated above. Concerned learned Sessions Judges shall issue necessary directions in accordance with law for production and appearance of accused persons before the Court of learned Sessions Judge, Jalpaiguri. 22. Send a copy of this order to the learned Sessions Judge, Darjeeling and learned Sessions Judge, Jalpaiguri for information and necessary action. Xerox certified copy be supplied to the parties, if applied for, expeditiously.