Research › Search › Judgment

Calcutta High Court · body

2010 DIGILAW 940 (CAL)

STATE OF WEST BENGAL v. Gopal Shil

2010-08-06

KALIDAS MUKHERJEE

body2010
JUDGMENT KALIDAS MUKHERJEE, J. 1. THIS is an application under Section 482 of the Code of Criminal Procedure assailing the order No. 11 dated 11.12.2003 passed by learned Sessions Judge, Burdwan in Criminal Misc. Case No. 1266 of 2003 in connection with Sessions Case No. 53 of 2001 arising out of Katwa P.S. Case No. 99 of 1996 under Section 448/376 I.P.C. transferring the case from the Court of learned Additional Sessions Judge, Katwa to the Court of learned Additional Sessions Judge, Fast Track Court, Katwa for disposal. 2. THE application was filed before the learned Sessions Judge under Section 408 Cr.P.C. for the transfer of the said case alleging that after the framing of the charge five witnesses have already been examined and on 05.6.2003 the accused was absent due to his illness and prayed for time by filing a medical certificate which did not contain the signature of the accused. THE learned Additional Sessions Judge rejected the prayer for time and issued warrant of arrest against the accused fixing 16.6.2003 for ER. THE O.C. Katwa P.S. did not execute the warrant of arrest which caused annoyance of the learned Additional Sessions Judge. THE petitioner surrendered before the learned Trial Judge on 16.7.2003 and produced the prescriptions to substantiate his explanation for his absence due to the compelling circumstances. But the learned Trial Judge decided to proceed with the trial by keeping the accused in judicial custody. THE learned Trial Judge observed that the alleged medical certificate was got up one and rejected the prayer for bail on 31.7.2003. THE learned Judge verbally expressed that the evidence so far collected will lead to the conviction of the petitioner for which he wanted to keep the petitioner in custody with a view to giving benefit under Section 428 Cr.P.C. It was alleged in the application under Section 408 Cr.P.C. that the learned Trial Judge pre-judged the case before the completion of Trial and it caused apprehension in the mind of the accused that he would not get proper justice and fair trial if the trial was concluded before the said learned Trial Court. The learned Sessions Judge upon hearing both sides and relying upon a Full Bench decision of Allahabad High Court was of the view that the Sessions Judge was competent to transfer the case under Section 408 if it was expedient in the interest of justice to do so. The learned Trial Judge observed that the application was filed under Section 408 and not under Section 409 Cr.P.C. 3. MR. Chatterjee appearing on behalf of the petitioner submits that the observation was made by the learned Trial Judge caused apprehension in the mind of the accused/petitioner that he will not get justice before the said Court and the learned Sessions Judge under Section 408 Cr.P.C. was pleased to transfer the case to the Fast Track Court. MR. Chatterjee submits that the Hon'ble Court has ample power under Section 482 Cr.P.C. to transfer the case from one Court to another. 4. MS. Mukherjee appearing for the petitioner i.e. State of West Bengal submits that under Section 409(2) Cr.P.C. the learned Sessions Judge had no jurisdiction to transfer the case from one Court to another, in as much as, five witnesses had already been examined. In this connection, the learned Counsel has referred to and cited the decision reported in 1984 Cr.L.J. 28 [Manoj Majumdar Vs. State of West Bengal]. It appears that in the instant Sessions case five P.Ws were examined before the learned Trial Judge. Although, the application was filed before the learned Sessions Judge under Section 408 Cr.P.C, the provision contained in 409 (2) specifically provides that such power of transfer can be exercised at any time before the Trial of the case has commenced. It is the settled principle of law that the trial of the case begins with the framing of the charge and recording the plea of the accused. It is evident that in the instant case after the framing of charge five P.Ws. were examined. In view of the decision in the case of Manoj Majumdar Vs, State of West Bengal (Supra) it is clear that after the framing of the charge the impugned order for transfer of the Sessions case from one Court to another was without jurisdiction. The impugned order was passed on 11.12.2003 and the learned Trial Judge who allegedly made the observations might have been transferred by this time. The impugned order was passed on 11.12.2003 and the learned Trial Judge who allegedly made the observations might have been transferred by this time. I, therefore, do not find it proper to pass any order for the transfer of the case under the inherent jurisdiction of this Court. Such being the position I find that the impugned order passed by the learned Sessions Judge is not sustainable in law and the same is, therefore, set aside. The said Sessions Case will remain in the Court of learned Additional Sessions Judge, Katwa and the learned Judge will dispose of the case as early as possible. 5. THE application under Section 482 Cr.P.C. is allowed. Interim order, if any, stands vacated.