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2005 DIGILAW 694 (CAL)

Yashmin Khatoon v. STATE OF WEST BENGAL

2005-11-18

ARUN KUMAR BHATTACHARYA

body2005
Judgment :- (1.) The hearing stems from an application filed by the petitioner praying for transfer of G.R. Case No. 834 of 2001 under Sections 498A/494 I.P.C. pending in the Court of learned Sub-Divisional Judicial Magistrate (now Chief Judicial Magistrate), Jalpaiguri to the Court of Islampur, District Uttar Dinajpur. (2.) The circumstances leading to the above application are that the marriage of the petitioner was solemnized with O.P. No. 2 Md. Doud on 07.07.99 according to Mahomedan rites and customs, and out of the said wedlock a male child was born on 26.7.2002. Since the time of marriage the petitioner was subjected to cruelty, both physically and mentally by the O.Ps./ accused persons who drove her out from the matrimonial home and since then she has been residing at her fathers place. She obtained an order of maintenance in M.R. Case No. 159 of 2001 under Section 125 Cr. P.C. @ Rs. 500/- p.m. for self and Rs. 200/-p.m. for her minor son from the Court of learned S.D.J.M., Islampur, District Uttar Dinajpur. After driving her out O.P. No. 2 has married for the second time to one Saraswati. On account of the said torture she lodged a complaint with Islampur P.S. which forward the same to Malbazar P.S. and charge-sheet under-Sections 498A/494 I.P.C. was filed. The said O.Ps. have been continuously threatening her with dire consequences if she proceeds with the aforesaid case being G.R. No. 834 of 2001, for which she lodged a complaint with O.C., Jalpaiguri P.S. as also O.C., Islampur P.S. She reasonably apprehends that her life will be in danger if she has to go to the Court of Jalpaiguri for the purpose of conducting the aforesaid criminal case, as the O.Ps./accused persons will not allow her and also herwitnesses to depose before the Court. Moreover, as she has a minor child, aged about three years, it would not be possible on her part to go to the Court of Jalpaiguri for conducting the case. (3.) Mr. Moreover, as she has a minor child, aged about three years, it would not be possible on her part to go to the Court of Jalpaiguri for conducting the case. (3.) Mr. Purnasish Gupta, learned Counsel for the petitioner, advanced argument contending that since his client being a lady, having a child aged about three years, has been continuously threatened with dire consequences by the O.P./accused 2 to 10 if she attends the Court at Jalpaiguri to conduct the case, her apprehension regarding danger to her life is reasonable and in such circumstances, there will be little or no chance on the part of her as also her witnesses to depose in the case in the Court of Jalpaiguri. In support of his contention, Mr. Gupta drew Courts attention to two G.D. Es. dated 12.09.2002 and 17.09.2002 lodged at Islampur P.S. and Jalpaiguri P.S. respectively. Mr. Kashem Ali Ahmed, learned Counsel for the State, in his usual fairness, supported the above contention and submitted that the apprehension of the petitioner being reasonable, the Court may consider the prayer favourably. (4.) Section 407 Cr. P.C. clothes a party with power to apply for transfer of a case where the party apprehends he cannot get a fair or impartial enquiry or trial. In common parlance trial can be said to be fair only when it is conducted with honesty. To enable a party to apply and obtain a transfer, one or more of the three grounds in clauses (a) to (c) of sub-section (1) of Section 407 must be alleged and substantiated. Transfer is made not because the petitioner will not have a fair and impartial trial, but because the petitioner has reasonable apprehension that he will not have such a trial. The words "expedient for the ends of justice" are very wide and embrace grounds outside the other clauses which may indicate the necessity of a transfer to secure justice and a fair trial. What is reasonable apprehension should be decided according to the incidents of the case and special circumstances. Confidence in the administration of justice is an essential element of good government and reasonable apprehension of failure of justice in the mind of the applicant should, therefore, be taken into serious consideration. That apart, convenience of the complainant and prosecution witnesses is relevant for transfer. Confidence in the administration of justice is an essential element of good government and reasonable apprehension of failure of justice in the mind of the applicant should, therefore, be taken into serious consideration. That apart, convenience of the complainant and prosecution witnesses is relevant for transfer. (5.) Considering the matter from the above perspective and taking into account the aforesaid submission, the ground for transfer due to apprehension of the petitioner that her life would be in danger if she attends the Court at Jalpaiguri and that she will be deprived of fair trial appears to be reasonable and justified. (6.) As such, the application be allowed. Let the G.R. Case being No. 834 of 2001 under Sections 498A/494 I.P.C. pending in the Court of learned S.D.J.M. (now C.J.M.), Jalpaiguri be transferred to the Court of learned S.D.J.M. (now A.C.J.M.), Islampur, District Uttar Dinajpur for disposal. Let a copy of this order be sent to the Courts of learned C.J.M., Jalpaiguri and A.C.J.M., Islampur.