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2009 DIGILAW 908 (CAL)

Bimal Diyali v. STATE OF WEST BENGAL

2009-12-16

ASHIM KUMAR ROY

body2009
Judgment :- (1.) Invoking Section 407 of the Code of Criminal Procedure the accused persons moved this Court for transfer of G.R. Case No. 2 (1) 2009 from the Court of the learned Additional Chief Judicial Magistrate, Kurseong, to the Court of the learned Chief Judicial Magistrate, Jalpaiguri. (2.) The transfer has been sought for on the following grounds; The victim of the aforesaid case where the petitioners have been arraigned as accuseds is a supporter of Gorkha Janamukti Morcha. On January 2, 2009, when they were produced before the learned Additional Chief Judicial Magistrate, Kurseong a mob of 800/900, supporters of Gorkha Janamukti Morcha attacked them and mercilessly assaulted the petitioners and abducted one of the accused Nirmal Diyali from the custody of the police and till date he has not been recovered. When police somehow managed to rescue the petitioners and as they sustained severe bleeding injuries were treated at North Bengal Medical Collage and Hospital, Siliguri. Following the aforesaid incident Kurseong Police Station Case No. 6 of 2009 under Sections 147/148/149/ 341/353/186/323/325/326/307/427/506 of the Indian Penal Code, read with Section 3 of P.D.P.P. Act and Kurseong Police Station Case No. 7 of 2009 under Section 364 of the Indian Penal Code was registered against those miscreants. As a result the petitioners reasonably apprehend serious threat to their life and limb, if they have to face their trial at Kurseong. (3.) Subsequently, when they were granted bail by this Honble High Court on condition of furnishing local surety as nobody from Kurseong was inclined to stand as their local surety, this Honble Court modified the condition by directing instead of local surety they shall be released on bail on furnishing of cash security of Rs. 20,000/-. In the meantime, police has submitted charge- sheet against the petitioners for the self-same offence in connection with the aforesaid case. (4.) Although, pursuant to the order of bail of this Honble High Court the petitioners were directed not to leave the jurisdiction of the learned Additional Chief Judicial Magistrate, Kurseong and to stay at their place of residence at Ratna Dayang, Rohini, but because of the threat held out to them by the supporters of Gorkha Janamukti Morcha they have stay away from their place of residence. The supporters of Gorkha Janamukti Morcha have also burnt out their respective houses. The supporters of Gorkha Janamukti Morcha have also burnt out their respective houses. (5.) Thus, it is submitted on behalf of the petitioners that if they have to face their trial before any Court at Kurseong not only their life would be at stake and as no lawyer from Kurseong as well as from outside is agreeable to defend them in the trial, the petitioners shall be seriously prejudiced. The case in question is thus required to be transferred to the Court of the learned Chief Judicial Magistrate, Jalpaiguri. (6.) The aforesaid contentions of the petitioners has not been disputed by the learned lawyer of the State and he conceded to their prayer for transfer of the case from the Court of the learned Additional Chief Judicial Magistrate, Kurseong to the Court of the learned Chief Judicial Magistrate, Jalpaiguri. In this connection the learned lawyer of the State produced before the Court a written instruction given to him by the Officer-in-Charge of Garidhura Out Post, Police Station Kurseong and the same is lying with the records. The contents of the said written instruction fully justify the contentions of the petitioners. It may be noted although the notice was sent to the defacto-complainant of the case, nobody appeared on his behalf, when this matter was taken up for hearing in spite of repeated calls. It appears from the affidavit of service already on record that notice has duly been served upon him. (7.) Now having regards to the prevailing condition at Kurseong and considering the facts no lawyer from the local Bar was inclined to defend the petitioners during the trial, in my opinion, it would be expedient in the interest of justice and conducive for a fair trial that G. R. Case No. 2 (1) of 2009 arising out of Kurseong Police Station Case No. 6 of 2009 and Kurseong Police Station Case No. 7 of 2009, now pending before the learned Additional Chief Judicial Magistrate, Kurseong be transferred to the Court of the learned Chief Judicial Magistrate, Jalpaiguri. Accordingly, it is directed the records relating to the G.R. Case No. 2 (1) of 2009, now pending before the learned Additional Chief Judicial Magistrate, Kurseong be also transmitted to the Court of the learned Chief Judicial Magistrate, Jalpaiguri. Accordingly, it is directed the records relating to the G.R. Case No. 2 (1) of 2009, now pending before the learned Additional Chief Judicial Magistrate, Kurseong be also transmitted to the Court of the learned Chief Judicial Magistrate, Jalpaiguri. The learned Chief Judicial Magistrate, Jalpaiguri is directed immediately after receipt of the records to supply the police papers to the petitioners and to commit the case for trial to the Court of the learned Sessions Judge, Jalpaiguri, who shall either himself hold the trial or shall transfer the same to any other competent Sessions Court for trial. It is directed the trial may be concluded with utmost expedition. (8.) The Office is directed to communicate this order to the Court of the learned Additional Chief Judicial Magistrate, Kurseong as well as to the learned Chief Judicial Magistrate, Jalpaiguri, (9.) In view of the disposal of main criminal revisional application, an application for extension of interim order being CRAN No. 3020 of 2009 has become infructuous and accordingly stands disposed of.