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2003 DIGILAW 451 (CAL)

SUBRATA BARMAN @ GOGA v. STATE OF WEST BENGAL

2003-09-01

DEBIPRASAD SENGUPTA

body2003
DEBIPRASAD SENGUPTA, J. ( 1 ) IN the present application under Section 407, Cr. P. C. the petitioner has prayed for transfer of Sessions Trial No. 1 of July, 2003 pending in the Court of the learned Additional Sessions Judge, 3rd Court, Midnapure, under section 302/120b/34, I. P. C. to some other Court of competent Jurisdiction in the same Sessions Division. ( 2 ) THE application for transfer has been made on the ground which relates to some observations made by the learned Trial Judge in the earlier sessions Trial No. XVII/march/2002. In the said trial, the learned Trial Judge, i. e. the learned Additional Sessions Judge, 3rd Court, Midnapore convicted 18 other accused persons and sentenced them under Section 302 read with section 120b/34, I. P. C. ( 3 ) IT is the contention of Mr. Basu, learned Advocate for the accused person that 18 other accused persons were convicted by the same learned trial Judge on the basis of evidence of certain persons who will also be examined as witnesses in the present sessions case. It is urged that as the learned trial Judge had believed those witnesses in the earlier trial of 18 accused persons, who were convicted by the said Judge, there is every possibility that the learned Judge may believe them again. In the earlier trial the Court had believed these witnesses, from which it could be inferred that the demeanour of witnesses had been accepted by the learned trial Judge as indicated the demeanour of a truthful witness, the said witnesses will be coming again in the present trial of the present petitioner. Even if it is taken that the learned Judge's mind will not be influenced by the earlier judgment passed in the earlier sessions trial, this may be a factor which may remain lurking in the mind of the accused person throughout the trial and if these witnesses are believed again he may have a feeling that the judgment of the learned trial Judge is influenced by the earlier judgment which was delivered by the same learned trial Judge convicting the other 18 accused persons. There may be a feeling in the mind of the accused person that the learned trial Judge is influenced by the opinion which he had formed about these witnesses in the earlier trial. There may be a feeling in the mind of the accused person that the learned trial Judge is influenced by the opinion which he had formed about these witnesses in the earlier trial. It is the contention of the learned Advocate for the petitioner that in a criminal prosecution the Court is always to give an accused a trial in which he may not have even the remotest cause to think or feel that he did not get fair trial from the said Court. Mr. Bose, learned advocate refers to certain portion of the earlier judgment delivered by the same learned trial Judge. At page 60 of the earlier judgment, the learned trial judge observed as follows : "we hope, that the search for the remaining murderers will continue so that all accomplices in this crime will be brought to justice. ( 4 ) IT is submitted by Mr. Bose, learned Advocate for the petitioner that from a reading of such observation made by the learned trial Judge it becomes evident that the learned trial Judge had already formed an opinion that the other accused persons who are not facing the trial are all murderers. Mr. Bose, learned Advocate for the petitioner also refers to some other pages of the judgment appearing at pages 62, 66 and 67 and after going through the said portions referred to in the said judgment, I do not find any observation made by the learned trial Judge from which it can be inferred that the learned Judge had already formed an opinion about the involvement of the present accused. ( 5 ) THE next submission made by Mr. Basu, learned Advocate for the petitioner is that if the present case is transferred from the Court of the learned additional Sessions Judge, 3rd Court Midnapore to other Court of competent jurisdiction, the prosecution will not suffer any injury by such transfer and it will give a greater confidence to the accused. ( 6 ) MR. Bose, learned Advocate for the petitioner relies upon a judgment reported in AIR 1966 SC 1418 (Gurcharan Das Chadha v. State of rajasthan ). In the said judgment it was held by the Hon'ble Apex Court as follows :"a case is transferred if there is a reasonable apprehension on the part of the party to a case that justice will not be done. In the said judgment it was held by the Hon'ble Apex Court as follows :"a case is transferred if there is a reasonable apprehension on the part of the party to a case that justice will not be done. A petitioner is not required to demonstrate that justice will be inevitably. He is entitled to a transfer if he shows circumstances from which it can be inferred that he entertains an apprehension and that it is reasonable in the circumstances alleged. It is one of the principles of the administration of justice that justice should not only be done but it should be seen to be done. However, a mere allegation that there is apprehension that justice will not be done in a given case does not suffice. The Court has further to see whether the apprehension is reasonable or not". ( 7 ) MR. Bose, learned Advocate for the petitioner also relies upon a judgment of the Hon'ble Apex Court reported in AIR 1965 SC 720 . From a reading of the said judgment it appears that the petitioner asked for transfer of the cases from the State of Punjab and his allegation was that as there was no separation of the Judiciary from the Executive, the magistracy is under the control of the Executive and he would not get justice at the hands of any Magistrate in the State. In the said judgment it was held by the Hon'ble apex Court that one of the highest principles in the administration of law is that justice should not only be done but should be seen to be done. In the said case there was enough allegation to show that certain strong parties were opposed to the petitioner in various ways. Whether they would exercise any influence upon the magistracy and whether magistracy will be able to stand with such pressure, was not germane to the said petition. The Hon'ble apex Court was of the opinion that the petitioner had by his affidavit made out sufficient circumstances from which it could be inferred that he had entertained reasonably, an apprehension that he would not get justice in these cases. In such circumstances the Hon'ble Apex Court directed transfer of the said case. ( 8 ) MR. Bose, learned Advocate for the petitioner next relies upon a judgment referred to in 1976 Crl LJ 1799 (Ram Ratan and Anr. In such circumstances the Hon'ble Apex Court directed transfer of the said case. ( 8 ) MR. Bose, learned Advocate for the petitioner next relies upon a judgment referred to in 1976 Crl LJ 1799 (Ram Ratan and Anr. v. State ). In the said judgment it was held that the accused must get a trial in which he may not have even the remotest feeling of not getting a fair trial. In the said case the accused was convicted in an earlier case by the same Judge on evidence of the same witnesses. It was held by the Hon'ble Apex Court that though the learned Judge would not be influenced by his having believed those witnesses in the earlier trial, this would lurk in the mind of the accused throughout. If those witnesses were believed again, the accused would feel that the Judge was influenced by his earlier opinion about those witnesses. ( 9 ) IN such circumstances, the learned Single Judge of Allahabad high Court, directed transfer of the sessions trial. ( 10 ) RELYING upon the aforesaid judgments it is submitted by the learned advocate for the petitioner that in the facts and circumstances of the present case the petitioner reasonably apprehends that he will not get a fair trial from the said Court. An accused in a criminal prosecution should not have remotest feeling that he will not get fair trial from any particular Court of law. ( 11 ) MR. A. Goswami, learned Advocates for the State opposes such application and submits that the present application is not at all maintainable in view of the fact that the petitioner did not comply with the provision laid down in proviso to sub-section 2 of Section 407, Cr. P. C. Mr. Goswami referring to the said provision submits that for transfer of the sessions trial from the learned Additional Sessions Judge, 3rd Court, Midnapore, the petitioner is to approach first the learned Sessions Judge and it is only after such prayer is refused of Sessions Judge, the petitioner can move this Court under Section 407, Cr. P. C. praying for such transfer of sessions trial, it is submitted by Mr. Goswami, learned Advocate for the State that the present case was committed to the Court of Sessions on 16. 6. 03. P. C. praying for such transfer of sessions trial, it is submitted by Mr. Goswami, learned Advocate for the State that the present case was committed to the Court of Sessions on 16. 6. 03. The learned Sessions Judge transferred the case to the Court of the learned additional Sessions Judge, 3rd Court, Midnapore on 4. 4. 03. Although the certified copy of such order was obtained by the accused petitioner on 7. 8. 03, he did not prefer any application before the learned Sessions Judge praying for transfer of the said sessions case as per the provision of Section 407 (2), cr. P. C. In the present case charge was framed on 25. 8. 03. Although the certified copy of the order was of transfer of the sessions case was obtained on 7. 8. 03 the petitioner did not prefer any application before the learned sessions Judge and filed this application before this Court only on 27. 8. 03. It is submitted by Mr. Goswami, learned Advocate for the State that the date for recording evidence was fixed on 29. 8. 03 and the present application was filed before this Court on 27. 8. 03. According to Mr. Goswami, learned advocate for the State this is nothing but an attempt on the part of the accused person to drag the proceeding and to frustrate the sessions trial. Mr. Goswami, learned Advocate for the State submits that the schedule was fixed by the learned Judge and by filing the present application the petitioner has made an attempt to frustrate the trial. Mr. Goswami, learned Advocate for the state also submits that the particular portions in the earlier judgment in the sessions trial, referred to by the petitioner's learned Advocate, does not at all indicate that the learned Trial Judge had formed any opinion regarding involvement of the present accused person in the alleged offence. It is also the contention of Mr. Goswami, learned Advocate for the State that in the present case 7/8 accused persons are absconding. The present petitioner also could be apprehended after a long period of absconsion if his prayer for transfer is allowed by this Court on the ground as agitated by him the next absconding accused also will come up before this Court after his apprehension with a similar prayer of transfer on the same ground. According to Mr. The present petitioner also could be apprehended after a long period of absconsion if his prayer for transfer is allowed by this Court on the ground as agitated by him the next absconding accused also will come up before this Court after his apprehension with a similar prayer of transfer on the same ground. According to Mr. Goswami, learned Advocate for the State this sort of practice adopted by the accused persons should never be encouraged by this Court. ( 12 ) I have heard the learned Advocate appearing for the petitioner as also the learned Advocate appearing for the State. In my considered view the present sessions trial should not be transferred on the ground as agitated by the petitioner in the present application. There is no doubt that the accused must get a fair trial in which he must not have even remotest feeling of not getting a fair trial. There is no doubt that it is of paramount importance that parties arraigned before the Court should have confidence in the impartiality of the Court. Where there is a reasonable apprehension in the mind of the accused that a fair and impartial trial cannot be had from a particular Court in which such trial is pending against him, a transfer should be ordered. But such apprehension must be reasonable. Fanciful and imaginary apprehension is not enough for ordering such transfer. What is reasonable apprehension must be decided from the facts of a particular case with reference to the incident and surrounding circumstances. ( 13 ) I have carefully gone through the portions which have been referred to by the learned Advocate for the petitioner. But I do not find any observation made by the learned Judge indicating involvement of the present accused petitioner in the alleged incident. As it has already been pointed out by the learned Advocate for the State that although the petitioner had sufficient opportunity to move the learned Sessions Judge praying for transfer of the sessions trial, they did not approach the Sessions Judge for such transfer which is a mandatory as per provision laid down in the proviso to sub-section 2 of Section 407, Cr. P. C. The charge was framed on 25. 8. 03. After such charge was framed the petitioner has come up before this Court and filed this application on 27. 8. 03. P. C. The charge was framed on 25. 8. 03. After such charge was framed the petitioner has come up before this Court and filed this application on 27. 8. 03. This is nothing but an attempt on the part of the accused person to drag the proceeding and to frustrate the trial. ( 14 ) AFTER considering the facts and circumstances of the case and submissions of the learned Advocate of the respective parties, I am of the view that this is not a fit case for interference by this Court and the sessions trial cannot be transferred on the ground as has been agitated by the petitioner in the present application. ( 15 ) I desire to make it known to the learned Trial Judge that while trying the present case he should not take into consideration the earlier judgement passed by him in the earlier sessions trial. He should try this case absolutely unaffected by any circumstances bearing it in mind that the tough and difficult job of judiciary is to act impartially and fairly. His only concern should be that the should do justice in accordance with law and I am confident that the learned Trial Judge will dispose of the case impartially and fairly. ( 16 ) THE present application accordingly fails and the same is dismissed.