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Gauhati High Court · body

2014 DIGILAW 32 (GAU)

Aboni Kumar Kalita v. Monalisa Sharma and Ors.

2014-01-09

INDIRA SHAH

body2014
1. This application under section 407, Cr.PC has been filed for transfer of Complaint Case No. 371/2010 from the court of learned Chief Judicial Magistrate, Kokrajhar either to the Chief Judicial Magistrate, Kamrup, Guwahati or to the Chief Judicial Magistrate, Barpeta. 2. Heard Dr. G. Lai, learned counsel for the petitioner as well as Mr. P.C. Goswami, learned counsel appearing on behalf of the respondent. 3. The petitioner herein lodged a complaint against the respondent for which the learned Chief Judicial Magistrate, Kokrajhar took cognizance under section 500/501(B) of IPC. It is averred in the petition filed by the petitioner that on 15.6.2012, i.e., date fixed in the aforesaid case, he went to attend the court of learned Chief Judicial Magistrate at Kokrajhar and while he was waiting inside his car outside the court complex, after submitting his attendance, at about 12.35 am, two unknown youths threatened him with dire consequences. They asked the petitioner to withdraw the complaint filed by him and not to come to Kokrajhar again. 4. The petitioner thereafter, lodged an FIR with Kokrajhar Police Station on the same day. It is the contention of the petitioner that in view of the threatening given to him by two unknown youths, he is under apprehension of danger of his life for continuing the proceeding at Kokrajhar. 5. Moreover, the area of Kokrajahr District is very much disttirbed and so it is very easy to any such youth to take advantage of the situation and to cause any kind of harm to any person without any fault. The petitioner has also alleged that he strongly believes that the aforesaid threat was given to him at the instance of the respondents in connievance with their rival group. 6. It is further referred that out of the three accused, respondent No. 2 and 3 are from Guwahati and they never appeared in the aforesaid case. Respondent No. 1 shall not face any difficulty if the case is transferred to Guwahati and if it becomes unsuitable for the respondent to continue further trial at Guwahati, the case may be transferred to Barpeta. 7. Respondent No.1 has filed affidavit-in-opposition against the petition wherein she denied that there is any apprehension or danger of life of the petitioner or at any point of time he was threatened by any person. 7. Respondent No.1 has filed affidavit-in-opposition against the petition wherein she denied that there is any apprehension or danger of life of the petitioner or at any point of time he was threatened by any person. She alleged that the motive behind filing of this petition is only to harass and put the respondent No. 1 in trouble. She has contended that she is a mother of two children and she has been under treatment in Apollo Hospital at Chennai. She has to visit Chennai for regular check-up. She further alleged that the petitioner has also threatened the respondent No. 1 that she will be put in trouble as one of brother of the petitioner is an employee of Guahati High Court. There is no reason to transfer the case and incase of transfer, the respondent No.1, who is a permanent resident of Kokrajhar town, will suffer immense harassment to attend the court at different places with her minor children and ailing body. 8. The foremost consideration for directing the transfer of cases under section 407, Cr.PC is to examine what is expedient in the ends of justice. Here the relevant provisions of section 407 Cr.PC may be quoted as under: "Power of High Court to transfer cases and appeals. - (1) Whether it is made to appear to the High Court - (a) That a fair and impartial inquiry or trial cannot be had in any criminal court subordinate thereto, or (b) That some question of law of unusual difficulty is likely to arise; or (c) That an order under this section is required by any provision of this Code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice, It may order- (i) That any offence be inquired into or tried by any court not qualified under sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence; (ii) That any particular case or appeal, or class of cases or appeals, be transferred from a criminal court subordinate to its authority to any other such criminal court of equal or superior jurisdiction; (iii) That any particular case be committed for trial to a Court of Sessions; or (iv) That any particular case or appeal be transferred to and tried before itself. (2) The High Court may act either on the report of the lower court, or on the application of a party interested, or on its own initiative: Provided that no application shall lie to the High Court for transferring a case from the criminal court to another criminal court in the same Sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him. (3) Every application for an order under sub-section (1) shall be made by motion, which shall, except when the applicant is the Advocate-General of the State, be supported by affidavit or affirmation. (4) When such application is made by an accused person, the High Court may direct him to execute a bond, with or without sureties, for the payment of any compensation which the High Court may award under sub-section (7). (5) Every accused person making such application shall give to the Public Prosecutor notice in writing of the application, together with a copy of the grounds on which it is made, and no order shall be made on the merits of the application unless at least twenty-four hours have elapsed between the giving of such notice and the hearing of the application. (6) Where the application is for the transfer of a case or appeal from any subordinate court, the High Court may, if it is satisfied that it is necessary so to do in the interests of justice, order that, pending the disposal of the application, the proceedings in the subordinate court shall be stayed, on such terms as the High Court may think fit to impose. Provided that such stay shall not affect the subordinate court's power of remand under section 309. (7) Where an application for an order under sub-section (1) is dismissed the High Court may, it is of opinion that the application was frivolous or vexations order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider proper in the circumstances of the case. (8) When the High Court orders under sub-section (1) that a case be transferred from any court for trial before itself, it shall observe in such trial the same procedure which that court would have observed if the case had not been so transferred. (8) When the High Court orders under sub-section (1) that a case be transferred from any court for trial before itself, it shall observe in such trial the same procedure which that court would have observed if the case had not been so transferred. (9) Nothing in this section shall be deemed to affect any order of Government under section 197." 9. Since it is evident from the aforesaid provision that the power of High Court to transfer case is a discretionary power. It may be useful to refer the following observation made in the matter reported as "Maneka Sanjay Gandhi v. Rani Jethmalani [1979] 4 SCC 167" : "2. Assurance of a fair justice is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini-grievances. Something more substantial, more compelling, more imparting, from the point of view of public Justice and its attendant environment, is necessitous if the court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. We have to test the petitioners' grounds on this touchstone bearing in mind the value that normally the complainant has the right to choose any court having jurisdiction and the accused cannot dictate where the case against him should be tried. Even so, the process of justice should not harass the parties and from that angle the court may weigh the circumstances. 4. A more serious ground which disturbs us in more ways than one is the alleged absence of congenial atmosphere for a fair and impartial trial. It is becoming a frequent phenomenon in our country that court proceedings are being disturbed by rude hoodlums and unruly crowds, jostling or cheering and disrupting the judicial hearing with menaces, noises and worse. This tendency of thoughts and street roughs to violate the serenity of the court is obstructive of the course of justice and must surely be stamped out. This tendency of thoughts and street roughs to violate the serenity of the court is obstructive of the course of justice and must surely be stamped out. Likewise, the safety of the person of an accused or complaint is an essential condition for participation in a trial and where that is put in peril by commotion, tumult or threat on account of pathological conditions prevalent in a particular venue, the request for transfer may not be dismissed summarily. It causes disquiets and concern to a court of justice if a person seeking justice is unable to appear present one's case, bring one's witnesses or adduce evidence. Indeed, it is the duty of the court to assume propitious conditions which conduce to comparative tranquility at the trial. Turbulent conditions putting the accused's life in danger or creating chaos inside the court hall may jettison public justice. If this vice is peculiar to a particular place and is persistent the transfer of the case from that place may become necessary." 10. Turning back to the facts of this case, it appears that the Unit Secretary j of AMSA Kokrajahr wrote a letter to the Commissioner and Secretary, ! Health and Family Welfare, Government of Assam, intimating the resolution of Kokrajahr Unit Assam Medical Service Association requesting the addressee to transfer the petitioner immediately in the aforesaid letter. Three resolutions were adopted alleging therein inter-alia that activities of the petitioner are against the interest of Civil Hospital at Kokrajhar, and that the petitioner has not been discharging from service in favour of General Public and practicing against the Medical ethics. 11. A defamatory news item was also published in a local newspaper, "Dainik Agradoot" wherein was mentioned that the petitioner gave wrong treatment to the patient. He ill behaved with his colleagues and subordinate staff as well as patient. It was also alleged that he committed rape on patient. Against the aforesaid imputation, the petitioner preferred a complaint before the Chief Judicial Magistrate at Kokrajhar. 12. The petitioner was transferred for the complaints lodged against him and he handed over his charge to the superintendent of Civil Hospital. An enquiry was held against him and the Joint Director of Health Service submitted his report wherein he stated that the petitioner was a good surgeon and he has served the community with dedication. 12. The petitioner was transferred for the complaints lodged against him and he handed over his charge to the superintendent of Civil Hospital. An enquiry was held against him and the Joint Director of Health Service submitted his report wherein he stated that the petitioner was a good surgeon and he has served the community with dedication. Another enquiry as per order of Deputy Commissioner was held by Additional Deputy Commissioner. In both the enquiries, it was reported that the petitioner was discharging his basic duties as Medical Officer as well as surgeon normally and punctually and the allegation lodged by AMSA Kokrajhar unit was intentional, partial and not genuine. 13. According to the petitioner the rival group planted a woman to lodge a false FIR against the petitioner alleging that the petitioner committed rape on her. Prior to trial of rape case, the petitioner had lodged the complaint under sections 500/501(B), IPC against the respondent. The petitioner faced the trial and he was acquitted by the learned trial court vide the judgment passed in Sessions Case No. 8/2011 under section 376 IPC. It was observed by the learned Sessions Judge that the victim was asked to file an FIR by one female reporter of a newspaper. She lodged the FIR after 4 years 3 months and 13 days of the alleged occurrence, i.e., on 7.7.2010. whereas the complaint by the petitioner was lodged on 10.6.2010. 14. It is settled law that all the stack holders of a case have inbuilt right to dealt with fairly in a criminal trial. Fair trial obviously would mean a trial before an impartial judge, a fair prosecutor and atmosphere of Judicial calm. If complainant gets threatened or any of his witnesses to give false evidence that would be denial of fair trial. It would result unfair trial. It is true that there must be reasonable apprehension on the part of a party to a case that justice may not be done and mere allegation that there is apprehension that justice will not be done cannot be the basis of transfer. In the case of "Gurucharan Das Chandha v. State of Rajsthan, AIR 1966 SC 1418 ." It was held : "A case is transferred if there is reasonable apprehension on the part of a case that justice will not be done. A petitioner is not required to demonstrate that justice will inevitably fail. In the case of "Gurucharan Das Chandha v. State of Rajsthan, AIR 1966 SC 1418 ." It was held : "A case is transferred if there is reasonable apprehension on the part of a case that justice will not be done. A petitioner is not required to demonstrate that justice will inevitably fail. He is entitled to a transfer if he shows circumstances from which it can be inferred that he entertains an apprehension and that it is reasonable in the circumstances alleged. He is one of the principles of administration of justice that justice should not only be done but it should be seen to be done. However, a mere allegation that there is apprehension that justice will not be done in a given case does not suffice. The court has further to see whether apprehension is reasonable or not. To judge the reasonableness of the apprehension the state of mind or the person who enter ruins the apprehension is no doubt relevant but that is not all." 15. In this case not only the defamatory imputation was published against the petitioner in daily newspaper, he also was implicated a case of rape at the instigation of some journalist. That apart the petitioner was transferred and ultimately he had to resign from his service. 16. It was appears from the report submitted by SI of police at Kokrajhar in respect of Kokrajhar P.S. 1229/2012 that the petitioner infact lodged an FIR on 15.6.2012 alleging that he was threatened by unknown youths while he was waiting outside the learned Chief Judicial Magistrate, Court complex. Although, the police is unable to nabbed the involved culprit, it is apparent from the aforesaid report that the investigation is going on. 17. Considering the aforesaid circumstances as well as the fact that two of the respondents are from Guwahati and they are appearing before the learned trial court through their Lawyer, it would not be inconvenient for them, if the case is transferred. So far as attendance of respondent No. 1 is concerned, she may be allowed by the learned trial court to appear through her advocate and in that eventuality, the petitioner shall not raise any objection or shall not dispute about her identity. 18. So far as attendance of respondent No. 1 is concerned, she may be allowed by the learned trial court to appear through her advocate and in that eventuality, the petitioner shall not raise any objection or shall not dispute about her identity. 18. Considering all the matter in its entirety, the complaint case No. 371/2010 under sections 500/501(5), IPC pending in the court of learned CJM, Kokrajhar, Assam is directed to be transferred to the learned CJM at Kamrup. Issue directions to the Learned CJM, Kokrajhar for transmit the case record to learned CJM Kamrup for trial. 19. Send a copy of this order to the learned CJM, Kokrajhar as well as to the learned CJM, Kamrup.