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2010 DIGILAW 802 (CAL)

Jamir Ali Mondal v. The State of West Bengal

2010-07-14

KALIDAS MUKHERJEE

body2010
Judgment : KALIDAS MUKHERJEE, J.: 1. This is an application under Section 401 read with Section 482 of the Code of Criminal Procedure assailing the order dated 18.8.2009, 10.9.2009 and 15.9.2009. 2. The case of the petitioner, in short, is that the petitioner is facing trial in the Court of learned Additional Sessions Judge, Fast Track Court, 1st Court, Baruipur in Sessions Trial No. 1(8) of 2006. On 3.7.2009 P.W. 9 Debobrata Ojha (I.O.) was examined in-chief, but, the cross-examination was deferred on the prayer of the learned Senior defence Counsel and the cost of Rs.200/-was awarded fixing 18.8.2009 for examination of I.O. subject to the deposit of the cost of Rs.200/-through challan. On 18.8.2009 the learned Advocate of the petitioner as usual paid the cost to the learned Public Prosecutor without going through the order passed on 3.7.2009. But the learned Judge by the order dated 18.8.2009 closed the evidence of P.W. 9 though the witness was very much present in the Court. 10.9.2009 was the date fixed for examination of the accused/petitioner under Section 313 Cr.P.C., but, on the said date the petitioner could not appear before the learned Court as he was seriously ill and in this regard prescription duly issued by the Doctor and relevant blood test report were submitted before the learned Judge. But the learned Judge was pleased to reject the prayer for adjournment and issued non-bailable warrant of arrest against the accused/petitioner. Being aggrieved by the said order dated 10.9.2009, the petitioner moved an application before the learned Sessions Judge at Alipore vide C.M.C. No. 5668 of 2009 wherein the learned Sessions Judge by an order dated 14.9.2009 was pleased to stay the order dated 10.9.2009 till 09.11.2009. The aforesaid order of the learned Sessions Judge was received by the learned Trial Court and the learned Court by order dated 15.9.2009 was pleased to confirm his earlier order of issuance of warrant of arrest dated 10.9.2009. The petitioner all along remained present during the trial and for the absence of a single day due to illness his prayer for adjournment was turned down by the learned Trial Court and the warrant of arrest was issued. The petitioner has been seriously prejudiced and it has been prayed that the order regarding issuance of warrant of arrest be set aside. The petitioner has been seriously prejudiced and it has been prayed that the order regarding issuance of warrant of arrest be set aside. It has further been stated in the application that the learned Trial Court was not justified in closing the evidence of P.W.9. The cross-examination of the I.O. on the part of the defence is very essential for the just decision of the case and by the order impugned the valuable right of the petitioner was taken away and the petitioner has been seriously prejudiced. While in another application it has been stated that the petitioner has been seriously prejudiced by the impugned order passed by the learned Trial Judge. The petitioner feels that he will not get proper justice unless the case is transferred from the concerned Court. It has been stated that the petitioner will suffer irreparable loss and injury if the case is not transferred to any other Court. By the said application the petitioner prays for transfer of the case. 3. The learned Counsel for the petitioner submits that the learned Trial Court was not justified in closing the evidence of P.W. 9 and issuing the warrant of arrest against the accused/petitioner. The learned Counsel submits that the petitioner has been seriously prejudiced by the impugned orders passed by the learned trial Judge and in the interest of justice the case should be transferred from the learned trial Court to any other Court. 4. The leaned Counsel appearing on behalf of the State submits that the order impugned may be set aside and the case may be transferred from the learned trial Court to any other Court with the direction to resume the proceedings of the case from the stage of cross-examination of P.W. 9. 5. Heard the learned Counsels for the parties. I have gone through the papers on record. It is contended by the learned Counsel for the petitioner that the way the learned trial Judge closed the evidence of P.W. 9 vide order dated 18.8.2009, issued warrant of arrest vide order dated 10.9.2009 against the accused/petitioner and directed the I.C. of concerned P.S. to execute the warrant of arrest against the accused/petitioner and the very approach with which the learned Trial Judge proceeded to deal with the matter created apprehension in the mind of the accused/petitioner that he will not get justice from the said Court. On perusal of the entire materials on record I find that the learned Judge of the Court below was not justified in closing the evidence of P.W. 9 and issuing the warrant of arrest against the accused/petitioner. 6. In the interest of justice I think that the case should be transferred from the Court of learned Additional Sessions Judge, Fast Track Court-I, Baruipur to the Court of learned Additional Sessions Judge, Fast Track Court –II, Baruipur. The orders impugned are set aside. The Sessions case No. ST 1(8) of 2006 pending in the Court of learned Judge, Fast Track Court – I, Baruipur is withdrawn and transferred to the Court of learned Judge, Fast Track Court – II, Baruipur for disposal. The learned Judge, Fast Track Court-II will proceed with the hearing of the case from the stage of cross-examination of P.W. 9 giving opportunity to the learned defence Counsel to cross-examine the P.W. 9. The learned Judge will thereafter dispose of the case according to law. The accused/petitioner is directed to appear before the learned Judge, Fast Track Court – II, Baruipur. 7. The Revisional Application is thus disposed of. 8. Let the copy of the order along with the LCR be sent to the learned Judge, Fast Track Court – II, Baruipur immediately. A copy of the order be also sent to learned Judge, Fast Track Court – I, Baruipur. 9. Urgent Photostat certified copy, if applied for, be handed over to the parties as early as possible.