Bhupendra Pradhan & Ors vs State Of West Bengal & Ors

Madhumati Mitra, J

This is an application under Section 407 of the Code of Criminal Procedure filed by the petitioners praying for transfer of the proceedings of G.R. Case No.7 of 2009 arising out of Kurseong Police Station Case No.7(1)/2009 under Section 364 of the Indian Penal Code from the Court of Learned Additional Chief Judicial Magistrate, Siliguri to the Court of Learned additional Chief Judicial Magistrate, Kurseong. Petitioners have also challenged the impugned order dated 11.12.2012 passed by the Learned Sessions Judge, Darjeeling.

The present petitioners are the FIR-named accused persons in respect of Kurseong Police Station Case No.7 of 2009 dated 02.01.2009 under Section 364 of the Indian Penal Code.

The brief facts which are essential for disposal of the present Revisional Application may be narrated as under:-

Officer-in-charge at Garidhara outpost under Kurseong Police Station on 02.01.2009 lodged one suo moto complaint stating that on that date at about 9.05 hrs. when the complainant and other officer were escorting on different police vehicles five FIR-named accused persons who had been arrested in connection with Kurseong Police Station Case No.01/09 dated 01.01.2009 under Sections 326/307/326/34 of the Indian Penal Code, the arrested accused persons attacked them along with an armed mob to GJMM party supporters on their way to kurseong Court at about 11.50 hrs. It was alleged that the said armed mob became very aggressive and violent and starting setting fire to the police vehicle. The principal accused person namely Nirmal Diyali was kidnapped by the mob and the other accused sustained injuries due to that attack.

On the basis of that FIR Kurseong Police Station Case No.7(1) of 2009 under Section 364 of the Indian Penal Code was initiated against the FIR-named accused persons.

Investigation culminated in submission of charge-sheet against all the FIR named accused persons for commission of alleged offences punishable Under Section 364 of the Indian Penal Code.

In the meantime, five persons viz Bimal Diyali, Krishna Bahadur Diyali, Bikash Diyali, Nirmal Diyali and Rajen Sinchuri whose names have been cited as witnesses in the charge-sheet, filed an application under Section 408 of the Code of Criminal Procedure praying for transfer of the proceedings of G.R. Case No. 7 of 2009 arising out of Kurseong Police Station Case No.7 of 2009 from the Court of Learned Additional Chief Judicial Magistrate, Kurseong to any competent Court at Siliguri. From the contents of the application under Section 408 of the Code of Criminal Procedure it is revealed that the petitioners are the witnesses of the proceedings of G.R. Case no.7 of 2009 under Section 364 of the Indian Penal Code and accused of Kurseong Police Station Case No.1 of 2009 dated 01.01.2009 under Sections 326/307/302/34 of the Indian Penal Code. The petitioners of the application under Section 408 of the Code of Criminal Procedure were arrested on 01.01.2009 in connection with Kurseong Police Station Case No.01 of 2009 when they were being produced before the Kurseong Court under huge police protection. Leader of Gorkha Janamurti Morcha along with 800/900 supporters armed with deadly weapons came to the Court premises and attacked the petitioners and police escort and kidnapped one of accused viz Nirmal Diyali. In their application under Section 408 of the Criminal Procedure the petitioners expressed their apprehension that free and fair trial would not be possible at Kurseong as there was threat to life and property and their lives would be at stake. The petitioners in their application for transfer specifically mentioned that after the incident they were residing outside Kurseong and they were threatened by the supporters of Gorkha Janamurti Morcha with dire consequences. In their application under Section 408 of the Criminal Procedure Code the petitioners/witnesses narrated the incident and how they were attacked by the mob and how one of the accused was kidnapped by the supporters of the Gorkha Janamurti Morcha from the Court Compound.

The petitioners have claimed that they are the witnesses of the case being G.R. Case No. 07.2009 and if they would not be able to give evidence due to fear and muscle power of the accused, the petitioners would be highly prejudiced.

During the pendency of the Revisional Application being CRR No.2145 of 2015, one CRAN Application being No.4750 of 2019 has been filed by the petitioners and opposite parties jointly stating that they have mutually agreed that the impugned order dated 11.12.2012 passed by the Learned Sessions Judge, Darjeeling, regarding transfer of the case from the Court of Kurseong to Court of Siliguri is causing great inconvenience and hardship to them. It has been stated in the said application that the accused persons of both the cases and the victims are facing difficulties to attend the Court proceedings in the Court of Siliguri.

Both the Revisional Applications and the CRAN application have been heard together.

Learned Counsel appearing for the petitioners has assailed the impugned order mainly on the ground that the Learned Sessions Judge passed the impugned order without affording any opportunity of being heard to the petitioners who are the accused of the criminal proceedings in G.R. Case No.07 of 2009. He has further submitted that the impugned order was passed on the basis of the submission of the prosecution and the witnesses. In this connection Learned Counsel has invited the attention of the Court at page 32 of the Revisional Application and contended that the accused were not made parties to the application for transfer of case under Section 408 of the Code of Criminal Procedure. He has forcefully contended that the transfer of criminal proceedings without the knowledge of the accused is against the rules of natural justice. The order passed by the Learned Sessions Judge is liable to be set aside.

In support of his contention he has placed his reliance on the following decisions. The decisions so cited are as follows:-

i. Abdul Nazar Madani Vs. State of T.N. & Anr. reported in (2000) 6 SCC 204;

ii. Mohd. Sukur Ali Vs. State of Assam reported in (2011) 4 SCC 729;

iii. Rajesh Talwar Vs. Central Bureau of Investigation & Ors. reported in (2012) 4 SCC 217.

Learned Public prosecution has vehemently opposed the prayer of the petitioners and refuted the submissions made by Learned Counsel for the petitioners. He has contented that Learned Session Judge was justified in passing the impugned order. He has further contended that from the averments of the application under Section 408 of the impugned order it was clear that the witnesses were compelled to approach before Learned Sessions Judge to transfer the case from Kurseong to Siliguri Court.

A perusal of the materials on record reveals that the present petitioners are the accused of the criminal proceedings arising out of Kurseong Police Station Case No.7(1)/2009 under Section 364 of the Indian Penal Code. The impugned order dated 11.12.2012 was passed by the Learned Sessions Judge on the prayer of the witnesses of that case. From the submissions made by the Learned Counsel for the parties it is an admitted fact that the witnesses who approached before the Learned Sessions Judge for transfer of the case arising out of Kurseong Police Station Case No.7(1)/2009 are the accused persons in connection with another case arising out of Kurseong Police Station Case No.01 of 2009 dated 01.01.2009 under Sections 326/307/302/34 of the Indian Penal Code.

On perusal of the documents containing details of the cases pending against the present petitioners and opposite parties it is clearly indicated that both the petitioners and the opposite parties have been made accused in commission of alleged offences which are serious in nature. From the materials on record, it further transpires that both the petitioners and the opposite parties belong to different groups. Allegation against the present petitioners is that they snatched away and kidnapped one of the accused persons from the custody of the police while the accused persons were being produced before the Court of Law. The allegation contained in the FIR prima facie show that the apprehension of the witnesses is reasonable as they apprehended the danger to their lives as one of the accused persons of Kurseong Police Station Case No.01 of 2009 dated 01.01.2009 under Sections 326/307/302/34 of the Indian Penal Code, was kidnapped from Police Custody. The witnesses who approached for transfer of the case before the Learned Sessions Judge are the remaining accused of said Kurseong Police Station Case No.01 of 2009. The present petitioners are alleged to have been involved in the commission of the said offence of kidnapping.

It is true that the petitioner/accused were not made parties to the application under Section 408 of the Code of Criminal Procedure.

In this connection Learned Counsel for the petitioners has cited the decision of Mohd. Sukur Ali Vs. State of Assam reported in (2011) 4 SCC 729 and claimed that the right of hearing of the accused has been totally debunked by the Learned Judge at the time of passing the impugned order.

I have gone through the decision as cited by the Learned Counsel. The decision cited by the Learned Counsel for the petitioners relates to the right of the accused to be defended by the counsel. In the present case, case has been transferred from one Sub-Division to another Sub-Division by the Learned Sessions Judge after considering the apprehension of the witnesses. The decision cited (supra) above has no bearing with the facts and circumstances of the present case.

The impugned order of transfer passed by the Learned Sessions Judge has been assailed by the Learned Counsel for the petitioners on the ground that at the time of passing the impugned order, the Learned Judge has failed to consider the guiding principles for transfer of cases from one Court to another Court.

In support of this contention Learned counsel for the petitioners has invited the attention of the Court to the decision of Abdul Nazar Madani Vs. State of T. N. & Anr. reported in (2000) 6 SCC 204. Learned Counsel has laid emphasis on paragraph 7 of the said Judgment.

Paragraph 7 runs as follows:-

"7. The purpose of the criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. When it is shown that public confidence in the fairness of a trial would be seriously undermined, any party can seek the transfer of a case within the State under Section 407 and anywhere in the country under Section 406 CrPC. The apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary, based upon conjectures and surmises. If it appears that the dispensation of criminal justice is not possible impartially and objectively and without any bias, before any court or even at any place, the appropriate court may transfer the case to another court where it feels that holding of fair and proper trial is conducive. No universal or hard and fast rules can be prescribed for deciding a transfer petition which has always to be decided on the basis of the facts of each case. Convenience of the parties including the witnesses to be produced at the trial is also a relevant consideration for deciding the transfer petition. The convenience of the parties does not necessarily mean the convenience of the petitioners alone who approached the court on misconceived notions of apprehension. Convenience for the purposes of transfer means the convenience of the prosecution, other accused, the witnesses and the larger interest of the society."

In the instant case, in the petition of transfer, the present opposite parties expressed their apprehension of not getting a fair and impartial trial. The background of the case shows such apprehension is reasonable and justified.

During the pendency of the Revisional application both the petitioners and the opposite parties have filed the joint application praying for setting aside the impugned order and to send back the case to Kurseong Court as the stage of apprehension is over. It has been observed earlier that cases of serious nature are pending against the present petitioners and opposite parties. Both the petitioners and the opposite parties are the witnesses against each other. The background of the aforesaid development of the relationship of the petitioners and the opposite parties raises a serious doubt that the petitioners and the opposite parties are acting hand in glove with each other and this development shows that there is a likelihood of miscarriage of justice.

In the transfer petition, the Learned Judge has allowed the prayer for transfer of the case after taking into consideration of the apprehension of the opposite parties.

In criminal administration of justice it is the duty of the Court to ensure free and fair trial. Court should not act on the whims of the parties when it appears that the petitioners and the opposite parties have been against each other and the alleged offences involving Section 364 and Section 302 of the Indian Penal Code. Sudden compromise of two rival groups may not be ground to set aside the impugned order of transfer of the case when such order was passed on reasonable apprehension of one of the parties to the present CRAN Application being No.4750 of 2019. Moreso, the interest of the petitioners would not be prejudiced by the impugned order as the right of the accused/petitioners to be defended has not been interfered with by the impugned order.

In view of above, both the Revisional Applications being No.2145 of 2015 and CRAN being no.4750 of 2019 are dismissed.

Certified copy of the case diary be handed over to the Learned Counsel for the State immediately.

Urgent certified photocopy of this judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.