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2015 DIGILAW 729 (CAL)

Nila Hamid v. State of West Bengal

2015-08-31

SANKAR ACHARYYA

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Judgment : SANKAR ACHARYYA, J. This is an application under Section 407 read with Section 482 of the Code of Criminal Procedure, 1973 filed by petitioner Nila Hamid against the State of West Bengal as Opposite Party No. 1 and nine others for transfer of Berhampore P.S. Case No. 481/11 dated 15.05.2011 corresponding to G.R. No. 2106/2011 which has been registered as Sessions Serial No. 349 of 2014 from the Court of learned Session Judge, Murshidabad to any other neighbouring district for trial. Contending inter alia, the petitioner has contended that her husband Md. Kamaruzzaman was brutally murdered on the public thoroughfare for which the aforesaid case has been started. The accused persons are very influential persons and they through some unidentified persons threatened the petitioner, her daughter and the informant on several occasions with dire consequence in case of giving evidence against the accused persons in the case. Under such circumstances, they are afraid of dire consequences in case of trial of the case in the District of Murshidabad at Berhampore. With such apprehension the petitioner has filed the instant case for transfer of the case from the Court of learned Session Judge, Murshidabad. During pendency of the instant case one Mr. Abdur Roshid has been added as Opposite Party No. 11 with the leave of a coordinate bench of this High Court. Despite service of notice excepting the Opposite Party No. 1 the State of West Bengal none of the opposite parties participated in the hearing. At the time of hearing, learned Advocate for the petitioner submitted that this is a very fit case for transfer of the case from the Court of learned Session Judge, Murshidabad to any other competent Court in the neighbouring districts. According to him, the accused persons in the case are very much influential persons. Giving emphasis he has submitted that one of the accused persons is a Member of Parliament and he is also the highest portfolio- holder of a National Political Party in this State of West Bengal. He has drawn my attention to the annexures to the application and has submitted that several informations were given to the police about the incidents of threatening on vital witnesses at the instance of the accused persons. He has relied upon a decision of the Hon’ble Supreme Court in the case of Vikas Kumar Roorkewal Vs. State of Uttarakhand and Ors. He has relied upon a decision of the Hon’ble Supreme Court in the case of Vikas Kumar Roorkewal Vs. State of Uttarakhand and Ors. reported in (2011) 1 Supreme Court Cases (Cri) 638. On the other hand, learned Advocate appearing for the State submitted that transfer of the case is not the real solution to ensure a fair trial. He has drawn my attention to the certified copy of the charge-sheet submitted alongwith the application of the petitioner and has submitted that there are 51 witnesses against the accused persons and most of them stay in the District of Murshidabad and, therefore, production of the witnesses in a different district may cause delay and inconvenience in fair trial of the case. But if any of the witnesses feels insecured then he/she may be advised to move the SP Murshidabad for getting security and in such case there may be a direction on SP Murshidabad for giving such witness security in giving proper evidence in Court during trial. According to the learned Advocate for the State transfer of the case is not the real solution according to the problems alleged by the petitioner in her application. I have carefully gone through the materials on record. It appears from the certified copy of the charge-sheet that there are 51 witnesses in favour of the prosecution against the accused persons. Among them the Opposite Party No. 11 is the witness No. 1 and he is the informant of the case. I do not find any complaint on his part before police authority regarding threat on him. Witness No. 12 is a brother of the victim of the case, witness No. 31 is the wife of the deceased and witness No. 8 is the daughter of the deceased. They complained before O.C. Berhampore Police Station that on several occasions they were threatened by some unidentified persons for not giving evidence in the case. Beside said three witnesses No. 8, 12 and 31 many other witnesses of Berhampore, Murshidabad have been listed in charge-sheet. Said three above named witnesses are also residents of Berhampore, Murshidabad. In the cited decision the Hon’ble Apex Court has been pleased to observe that “The necessity of fair trial hardly needs emphasis. The State has a definite role to play in protecting the witnesses, to start with at least in sensitive cases”. Said three above named witnesses are also residents of Berhampore, Murshidabad. In the cited decision the Hon’ble Apex Court has been pleased to observe that “The necessity of fair trial hardly needs emphasis. The State has a definite role to play in protecting the witnesses, to start with at least in sensitive cases”. Prima facie, this Court believes the instant case as sensitive one. Fair trial in the instant case is the demand of justice and it needs to be fulfilled. For doing so, whether transfer of the case from the Court of learned Session Judge, Murshidabad at Berhampore to an another district is the proper solution is the moot question for determination here. In my view, transfer of the case to another district where 51 witnesses are required to be produced during trial, may not be the real solution according to the circumstances of this case. In this regard, I like to mention that the circumstances prevailed in the cited decision of the Hon’ble Apex Court are not similar to the instant case. The arguments advanced before me by the learned Advocate for the State appears to me as very much reasonable and, therefore, it should be accepted. Accordingly, the prayer of the petitioner for transfer of this case from the district of Murshidabad to any other district is liable to be rejected but petitioner’s demand of fair trial requires to be given prime importance. Therefore, the petition under Section 407 of the Code of Criminal Procedure, 1973 for transfer of Sessions Serial No. 349/2014 of the Court of learned Session Judge, Murshidabad to another district is rejected; but, in the interest of administration of criminal justice system, by exercising power of this Court under Section 482 of the Code of Criminal Procedure, 1973, let there be a strict direction upon the Superintendent of Police, Murshidabad to ensure production of all the witnesses of prosecution giving them full protection so that they can give evidence in Court without fear and favour during trial. The Superintendent of Police, Murshidabad must arrange and ensure security for the witnesses as and when required. Accordingly this case is disposed of. A copy of this judgment be sent to the Superintendent of Police, Murshidabad for strict compliance. Interim order passed earlier stands vacated. The Superintendent of Police, Murshidabad must arrange and ensure security for the witnesses as and when required. Accordingly this case is disposed of. A copy of this judgment be sent to the Superintendent of Police, Murshidabad for strict compliance. Interim order passed earlier stands vacated. A copy of this judgment be sent to learned Session Judge, Murshidabad at Berhampore with a direction for speedy disposal of the case. Learned Session Judge must keep it in mind that in para 22 in the decision reported in (2011) 1 Supreme Court Cases (Cri) 638 the Hon’ble Supreme Court of India has been pleased to observe about the Trial Judge, “He was not expected to act like a mere tape recorder to record whatever has been stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act confers vast and wide powers on court to elicit all necessary materials by playing an active role in the evidence collecting process”. Urgent certified photocopy, if applied for, be supplied to the parties observing all requisite formalities.