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2009 DIGILAW 192 (CAL)

Sandip Saha v. STATE OF WEST BENGAL

2009-03-06

PARTHA SAKHA DATTA

body2009
Judgment :- P.S. DATTA, J. (1) By this application dated 27th February 2008 u/s 407 read with section 482 Cr.p.c. prayer has been made by the defacto complainant for transfer of the Sessions Case No. 16(6)/07 u/s 498A/306/34 IPC form the court of the learned Additional Sessions Judge, Fast Track Court at Bishnupur to any court of the Sessions Division of Paschim Medinipur. (2) The father of the defacto complainant who is also the father of the victim made a representation before the Superintendent of Police alleging that the accused persons have been constantly threatening them but the police was also not arresting the accused persons except one. On 8th May 2007 the decacto complainant lodged a general diary being GDE No. 771 dated 8.5.2007 with the Inspector in charge, Paschim Medinupur. The defacto complainant and the members of his family are required to attend before the learned Trial Court at Bishnupur but their lives are in danger as they were constantly threatened by the accused persons. One of the accused is also a police constable of Bishnupur. Accordingly, prayer is made for transfer of the case from Bishnupur to Paschim Medinupur. (3) Mr. Dey, learned Senior Advocate appearing for the petitioner submitted that there is every reason to believe that the circumstance are such that the defacto complainant and the other witnesses will not be able to freely tell the prosecution evidence and if justice is of a prime consideration then the case should be transferred to any court within the district of Paschim Medinipur. (4) Mr. Deep Chaim Kabir, learned Advocate appearing for the opposite party submits that a police constable cannot be said to be a powerful man to create any situation fabourable to the defence so as to hinder the prosecution witnesses from freely narrating their evidence. It is not that a case u/s 302 has been illegally converted into one u/s 306 IPC. The accused persons had no hand in the investigation of the case and upon investigation a case u/s 306 IPC could only be found out. It is false to allege that the defacto complainant and the members of his family were at all threatened so as to deter them from coming into Bishnupur from the town of Medinupur for the purpose of giving evidence. It is false to allege that the defacto complainant and the members of his family were at all threatened so as to deter them from coming into Bishnupur from the town of Medinupur for the purpose of giving evidence. If any compliant was at all lodged either with the IC Medinipur PS or with the IC Bishnupur PS. it is not known whether the allegations were at all enquired into or not, and if any enquiry was at all made what was the result of such enquiry. Mere allegation unaccompanied by any report of the police as to ascertain the veracity of the allegations is not the ground for transfer of the case. (5) FIR was lodged on 28th December 2005 against the opposite parties u/s 498A/302/34 IPC. Upon investigation charge sheet was submitted u/s 498A/306 IPC sometime in September 2006. On 15th January 2007 the defacto complainant lodged a complaint with the OC Bishnupur that on 14th January 2007 he had come to Bishnupur court to give evidence and on that day as the learned Judge was on leave he left the court premises to reach the bus stand where he was threatened by the accused persons for giving evidence against them. It was diarised as GDE no. 771 dated 8th May 2007. On 8th May 2007 the defacto complainant lodged a petition with the IC Kotoali PS of Paschim Medinipur informing him that the accused persons had threatened them over telephone with consequences if they would appear in Bishnupur court on 19th May 2007 (Annexure B). Another diary was earlier lodged being GDE no. 686 dated 22.12.2006. It further appears that on 28th October 2008 the mother of the defacto complainant lodged a compliant with the IC Kotoali PS, Paschim Medinipur that when in connection with the trial of the case she and other members of the family came to Bishnupur to give evidence the accused persons particularly the husband of the deceased came to the lodge and asked him to withdraw the case. Subsequently the husband of the deceased telephoned her over his mobile no. 919622130041 for immediate withdrawal of the case. (6) These are the materials on the basis of which the petitioner apprehends that fair trial is not possible in the context of alleged continuous threatening at Bishnupur. Subsequently the husband of the deceased telephoned her over his mobile no. 919622130041 for immediate withdrawal of the case. (6) These are the materials on the basis of which the petitioner apprehends that fair trial is not possible in the context of alleged continuous threatening at Bishnupur. It is not known whether the police at all made any enquiry into the series of complaint but the complaints were lodged on 12.12.2006, 8.5.2007, 15.1.2008 and 28.10.2008. In such circumstances, the pertinent question is whether the case should be transferred from the court at Bishnupur. It is true that no police report is available on the truthness or otherwise of the complaints. It is also not known whether the police at all made any enquiry into any of the complaints or not. The specificity of the mobile pone number of the husband of the deceased, which allegedly was used to reiterate the message of withdrawal of the case cannot possibly be totally ignored. Mr. Kabir submitted that convenience of the witnesses should be looked into and out of about 25 witnesses few of them namely the members of the husband of the defacto complainant reside in the district town at Medinipur and the rest reside in the district of Bankura. Therefore, if the case is transferred to Medinipur it will be to the convenience of the majority of the witnesses. Mr. Dey refers to a Division Bench decision of this court in Punyananda Avadhut Vs. State and Ors. reported in AIR 1970 Cal. 241 wherein transfer of a case was held justified in a fact situation. Upon hearing the learned Counsels for the parties and considering the materials it appears to me that to ensure free and fair trial of case the same should be transferred to any neighbouring court. (7) Accordingly the application is allowed. The case is transferred from the court of Additional Sessions Judge, Fast Track Court Bishnujpur to the court of the learned Sessions Judge at Bankura. Learned Sessions Judge may either himself try the case or transfer it to any other Additional Sessions Judge of his station for trial from the stage where it was reached. The learned Additional Sessions Judge of Bishnupur will transmit the record of the case to the court of the learned Sessions Judge of Bankura.