Md. Abdul Hamid and Others vs The State of Tripura and Others

Utpalendu Bikas Saha, J.—1. The instant application is filed by the petitioners under Section 482 of the Code of Criminal Procedure, for setting aside the order dated 03.09.2011 passed by the learned Sessions Judge, North Tripura, Kailashahar in Criminal Revision Petition No. 03(3) of 2011, wherein, the learned Sessions Judge set aside the order dated 21st Judge, 2011, rejecting the prayer for withdrawal and transfer of the G.R. Case No. 165 of 2009 from the Court of learned Judicial Magistrate, 1st Class, Dharmanagar, North Tripura to any Court at Kailashahar, North Tripura and directed the learned Chief Judicial Magistrate North Tripura, Kailashahar, to withdraw the aforesaid G.R. Case No. 165 of 2009 from the Court of learned Judicial Magistrate, 1st Class, Dharmanagar and transfer the same to any 1st Class Judicial Magistrate, North Tripura, Kailashahar for fair trial.

The facts needed to be discussed are as follows:

The respondent No. 2 filed a complaint against the present petitioners before the Officer-in-Charge of Kadamtala Police Station, Dharmanagar, which was registered as Kadamtala P.S. Case No. 24 of 2009 under Section 498A of IPC.

After investigation, police filed the charge-sheet and when the trial was going to be started, the respondent No. 2 filed an application before the learned Chief Judicial Magistrate, North Tripura, Kailashahar under Section 410 of the Cr. P.C. for withdrawal of the aforesaid G.R. Case being No. 165 of 2009 from the Court of learned Judicial Magistrate, 1st Class, Dharmanagar, North Tripura and transfer the same to any Court at Kailashahar, North Tripura as the witnesses of the respondent No. 4 were threatened by the accused petitioners.

After hearing the parties, the learned Chief Judicial Magistrate, Kailashahar, North Tripura, rejected the prayer for withdrawal and transfer the G.R. Case. on the ground that even if the witnesses of the respondent No. 2 would be threatened then she is at liberty to approach the concerned trial Court to provide security to her witnesses.

Being aggrieved by the order of the learned Chief Judicial Magistrate, dated 21.06.2011 in Misc. No. 01 of 2010 the respondent No. 2 preferred a revision petition before the learned Sessions Judge, North Tripura, Kailashahar for setting aside the order of the learned Chief Judicial Magistrate as stated (supra) and also to transfer the case before any other Court of Judicial Magistrate, North Tripura, Kailashahar. The said revision petition was registered as Criminal Revision Petition No. 03(3) of 2011.

Learned Sessions Judge after hearing the parties, set aside the order of the learned Chief Judicial Magistrate, dated 21st Judge, 2011 and directed the learned Chief Judicial Magistrate, North Tripura, Kailashahar to withdraw the G.R. Case No. 165 of 2009 from the Court of learned Judicial Magistrate, 1st Class, Dharmanagar and transfer it to any Judicial Magistrate, 1st Class, Kailashahar for fair trial.

Being aggrieved by the revisional order dated 03.09.2011 passed by the learned Sessions Judge, the petitioners who are accused in G.R. Case No. 165 of 2009, filed the instant petition.

Ms. Roy, learned counsel appearing for the accused petitioners submits that the allegation of the respondent No. 2 is not correct and more so the offence was committed within the jurisdiction of Dharmanagar. Thus, the learned CJM rightly rejected the prayer for withdrawal and transfer.

She has also submitted that all the accused persons and the witnesses are the residents of Dharmanagar. Thus, it would not be proper to maintain the order of the learned Sessions Judge.

On the other hand, Mr. Dutta, learned counsel appearing for the respondent No. 2 submits that the respondent No. 2 is at present living at Kailashahar in her parental house and she is not in a position even to attend the Court at Dharmanagar as she was threatened by the accused persons. More so, being it is police case there will be no harm to call the witnesses for adducing their evidences at Kailashahar which is 40 km. from Dharmanagar.

He has taken us to the order of the learned Sessions Judge to show that the learned Sessions Judge has considered the entire aspects of the matter and stated that "it is a case pending under Section 498A of the IPC, the victim Chanwara Begam as alleged that she was driven out from the house of her husband at Dharmanagar and took shelter at Kailashahar. Her evidence definitely is vital in the G.R. Case No. 165 of 2009 pending before the court of Judicial Magistrate, 1st Class, Dharmanagar. The Chief Judicial Magistrate in exercising power under Section 410 of Cr.P.C. could withdraw the case and transfer to any court of Magistrate 1st Class, Kailashahar, but that discretionary power was not applied." He has also stated that the distance between Dharmanagar and Kailashahar Court is about 40 km.

Mr. Ghosh, learned P.P. submits that by this time the Judicial District of North Tripura is divided and a new judicial district at Dharmanagar is established which is known as north Tripura District and Kailashahar is at present within Unakoti District.

He also submits that due to separation of north Tripura district, the District Judge, North Tripura District has no power to transfer the case from Dharmanagar to Kailashahar but this case was transferred before separation of the district. He further submits that the High Court can transfer a case even from one district to another district for the ends of justice and for fair trial.

It appears from the records that the respondent No. 2 being wife of the accused No. 1 was ousted from his in-laws house and she is at present living at Kailashahar and she is also not in a position even to attend the Court of Judicial Magistrate, 1st Class Dharmanagar for adducing evidence as she was threatened by the accused persons.

The respondent No. 2 being a woman is not in a position also to keep contact with her witnesses. In the above facts and circumstances, this Court is of the considered opinion that the then Sessions Judge, North Tripura, Kailashahar did not commit any wrong while passing the impugned order.

It appears from the record that the impugned order passed by the learned Sessions Judge was initially stayed by this Court by an interim order dated 30.09.2011 in Crl. M. Appl. No. 208 of 2011 and subsequently the same was extended till 13.01.2012.

It is not clear whether by this time the aforesaid G.R. case was transferred to any court of judicial Magistrate at Kailashahar. If the same is not transferred then the learned CJM, North Tripura, Dharmanagar is directed to transfer the aforesaid G.R. Case No. 165 of 2009 to the Court of learned Chief Judicial Magistrate, Unakoti, Kailashahar and thereafter the learned Chief Judicial Magistrate, Unakoti, Kailashahar may take necessary steps for trial of the case in accordance with law after issuing notice to the parties.

With the aforesaid order the instant criminal petition is disposed of.