Calcutta High Court Abarna Mukhopadhyay-vs-Diptiman Mukhopadhyay And Ors. on 30 April, 2004
Equivalent citations:2005 (2) CHN 92
Author: P Sinha
Bench: P Sinha
P.N. Sinha, J.
1. This revisional application under Section 407 of the Code of Criminal Procedure (hereinafter called the Code) has been preferred by the petitioner praying for transfer of G.R. Case No. 226 of 1997 from the Court of the learned Judicial Magistrate, Kalyani to the Court of competent jurisdiction within the sessions division of Hooghly.
2. Learned Advocate for the petitioner contended that the opposite parties were arrayed as accused persons in Kalyani P.S. Case No. 68 dated 3.6.97 under Section 498A/34 of the Indian Penal Code (hereinafter called the IPC) on the basis of complaint lodged by mother of the petitioner, Petitioner is the wife of opposite party No. 1 and opposite parties inflicted serious physical and mental torture on her. The petitioner and opposite party No. 1 both are engaged in legal profession. The opposite party No. 2 was a member of the West Bengal Higher Judicial Service and is a very influential person. After investigation police has submitted chargesheet and the said case being G.R. Case No. 226 of 1997 is now pending in the Court of the learned Judicial Magistrate, Kalyani. Charge under Section 498A/34 of the IPC has also been framed against the opposite parties.
3. He further contended that the opposite party No. 2 was also a District Judge during his career and has influence both in the local Bar as well as the Bench. An application under Section 242(3) of the Code was preferred by the accused persons for examination-in-chief of four witnesses on the same day or on consecutive dates and to defer their cross-examination till other remaining witnesses are examined-in-chief. The learned Judicial Magistrate by order dated 28.8.03 allowed the said application and the learned Assistant Public Prosecutor remained a silent spectator. Deferring of cross-examination of any witness is a discretionary power of the learned Court and the accused has no right to ask for wholesale deferring of cross-examination of witnesses. The petitioner is not getting any assistance from the local Bar. For fair and impartial trial the records of the aforesaid case should be transferred to any other Court of learned Judicial Magistrate either in the District of Nadia or in the District of Hooghly and if the case is not transferred the petitioner will suffer irreparable loss and injury. It is the duty of the Assistant Public Prosecutor in charge of the case to examine the witnesses according to the choice of prosecution and defence has no say regarding manner of examination of witnesses. In the instant case, on the contrary, the learned Court fixed a programme for examination of witnesses on the basis of application filed by defence. It indicates that the learned Judge is to some extent bias and the petitioner will not get fair trial in the said Court.
4. Learned Advocate appearing for the State contended that in the application no ground has been made out for transfer of the case. The ground that O.P. No. 2 was a member of West Bengal Higher Judicial Service is not a ground for transfer of the case. The petitioner has prayed for transfer, but did not challenge the order of the learned Magistrate dated 28.8.03. It is not permissible to argue that the said order was bad in law in a revisional application seeking transfer of a case. The order of the learned Magistrate is legal and proper. There is no ground for transfer of the sessions case and the petitioner herself is an Advocate. Accordingly, the revisional application having no merit should be dismissed.
5. After considering the submissions of the learned Advocates for the parties and perusing the revisional application and annexures made thereto, I am of opinion that, there is no cogent and convincing ground for transfer of the G.R. Case No. 226 of 1997 from the Court of the learned Judicial Magistrate, Kalyani to any other Court, either in the District of Nadia or, in the District of Hooghly. The ground that opposite party No. 2 was a member of the West Bengal Higher Judicial Service is itself not at all a ground for transfer of a criminal case. In all the districts if statistics are taken, it may be found that several accused persons or complainants are relatives of retired members of West Bengal Higher Judicial Service. Such a matter cannot be a ground for transfer of a criminal case unless it is shown that the learned Magistrate by his conduct has reflected favour to such accused and bias to the petitioner. It should be remembered that O.P. No. 2 is now an accused in the said case and he has a right to defend his case by engaging a lawyer. His appearance in Court at this stage is not as a member of West Bengal Higher Judicial Service or as a retired member of West Bengal Higher Judicial Service, but his appearance before the learned Magistrate is now as an accused and nothing more. Court is equal to all, whether an ordinary person or a retired member of West Bengal Higher Judicial Service and law is also equal to all and law cannot show any extra advantage to a retired member of Judicial Service. I am not convinced at all with the argument of the learned Advocate for petitioner that O.P. No. 2 is a very influential person and can create his influence over the learned Magistrate. The petitioner herself is an Advocate and she is well aware about the procedure in such a case, and if, she finds that the Assistant Public Prosecutor is not taking proper steps to conduct the case for prosecution she has every right to give necessary instruction to such Public Prosecutor and in appropriate situation she may also engage a counsel of his own. Therefore, in my opinion there is no convincing ground for transfer of G.R. Case No. 226 of 1997 from the Court of learned Judicial Magistrate, Kalyani to any other Court of competent jurisdiction either in the District of Hooghly or at Krishnagar.
6. Though I am not inclined to transfer the case from Kalyani Court, I am of opinion that, the learned Magistrate is to some extent inexperienced and that is why the order passed by him on 28.8.03 is bad in law. Section 242(2) of the Code prescribes that the Magistrate may on the application of prosecution issue summons to any of its witness directing him to attend Court or to produce any document or other thing. It is a settled principle of law that it is the choice of prosecution that to whom the prosecution will examine as witness and in which order. The accused or defence has no right at all to interfere in the manner of examination of witness as well as order of examination of witness or the persons the prosecution shall examine as a witness. Similarly question of application of provisions of Section 242(3) of the Code does not arise unless the prosecution starts examination of its witness. In the instant matter I find that on the date of framing charge an application under Section 242(3) of the Code was filed on behalf of accused persons and the learned Magistrate blindly without following the provisions of law has allowed the said application. The accused cannot have any right of choice of examination of prosecution witnesses as already indicated above. It is the choice of prosecution to examine witnesses according to seriality of chargesheet or according to its order of choice as the Public Prosecutor or the Assistant Public Prosecutor in charge of the case may think it fit and proper for the prosecution. Unless recording of evidence of prosecution witnesses is started question of deferring cross-examination under Section 242(3) of the Code does not arise. Moreover, mere asking to defer cross-examination cannot be a ground for allowing an application under Section 242(3) of the Code. This Court in several decisions including Md. Sanjay v. State of West Bengal, reported in 2000 Cr. LJ 608, has clearly indicated that deferring wholesale cross-examination of prosecution witnesses is bad in law and it is not the intention of the legislature and the statute does not permit deferring of wholesale cross-examination of prosecution witnesses till particular witnesses are examined-in-chief.
7. In this aforesaid reported decision it was clearly observed that, “It is true that Sub-section (2) of Section 231, Cr. PC gives a discretion to the Judge to permit cross-examination of any witness to be deferred until any other witness or witnesses have been examined. But that does not mean that the accused has a right to ask for deferring the cross-examination in a wholesale way on the plea that otherwise the prosecution may take the chance of filling up the lacuna in its case that may be disclosed in course of cross-examination of its witnesses. It is needless to mention that ordinarily it is for the prosecution to decide for itself as to in which order it will examine its witnesses for proving its case. Since it is the burden of the prosecution to prove its case ordinarily it should be for the prosecution to decide in which manner and in what order it will produce its evidence before the Court subject to the control of the substantive and procedural laws . There is no doubt that if the exigency of the circumstances so requires in an appropriate case the Court has always the discretion to direct that the witnesses be examined in a particular order, but in the absence of any exigency or compelling reason it should be for the party to decide in which order it will produce and examine its witnesses. Section 138 of the Evidence Act also provides inter alia that the witnesses shall be first examined-in-chief and then if the adverse party so desires cross-examined and then, if the party calling him so desires re-examined ……. In a criminal trial the accused has an additional advantage inasmuch as copies of the earlier statements of the prosecution witnesses recorded under Section 161, Cr. PC are supplied to accused well in advance so that he cannot only know to his advantage what each prosecution witness is expected to tell while in the witness box but has also the advantage of cross-examining each and every witness with reference to the earlier statements made by such witness as well as by other witnesses during investigation and of thereby trying to bring out discrepancies amongst the evidence of the witnesses inter se as given in Court and also discrepancies between the evidence of a witness in Court and the earlier statement he made to the police.” Notwithstanding the fact that the above observations were made concerning sessions case, the principles of law are equally applicable in the trial of a warrant procedure case in relation to applicability of Section 242(3) of the Code.
8. Before transfer of a case for trial after submission of chargesheet copies of all relevant papers are supplied to accused persons. Accordingly the accused persons are well aware before hand what a witness is expected to depose in Court and if a witness says anything new in Court which was not stated by the said witness before the Investigating Officer during investigation under Section 161 of the Code, the accused is at liberty to cross-examine him on the new materials and can take contradictions from his earlier statements recorded by the Investigating Officer under Section 161 of the Code. Therefore, action of the learned Magistrate by settling the programme of examination of prosecution witnesses on the prayer of defence under Section 242 of the Code before prosecution started recording evidence of its witness is absolutely bad in law. The conduct of the learned Assistant Public Prosecutor is to some extent surprising as he remained silent and did not raise objection when after framing charge from defence side the said application under Section 242(3) of the Code was filed and the learned Magistrate allowed it and it is strange that learned Assistant Public Prosecutor remained totally silent and did not place his prayer regarding order of examination of prosecution witnesses. It is clear that the learned Magistrate bas totally failed to exercise jurisdiction vested on him and has passed an erroneous and illegal order on 28.8.03 by allowing petition under Section 242(3) of the Code and fixing date of examination of prosecution witness according to the order as claimed by defence. The said order being bad in law and without jurisdiction is set aside.
9. I am of opinion that the instant case should be tried by an experienced Magistrate and for ends of justice I direct that G.R. Case No. 226 of 1997 be transferred from the Court of the learned Judicial Magistrate, Kalyani to the Court of learned Sub-Divisional Judicial Magistrate, Kalyani for trial. It is expected that the learned Sub-Divisional Judicial Magistrate will not commit the mistake as has been made by the learned Judicial Magistrate and the learned SDJM shall follow the indications regarding manner of examination of witness in the body of the order and shall follow provisions of law and must be equal to both prosecution and defence. Learned Judicial Magistrate, Kalyani, Nadia is directed to send the records, documents and all other papers of G.R. Case No. 226 of 1997 now pending in his Court to the Court of the learned SDJM, Kalyani in terms of direction of this Court for trial. It is made clear that in the instant matter there is no cogent ground of deferring cross-examination of prosecution witnesses under Section 242(3) of the Code.
10. The revisional application is accordingly disposed of in terms of the directions as made in the body of the order.
11. Send a copy of this order to the learned SDJM, Kalyani and the learned Judicial Magistrate, Kalyani for information and necessary action.
12. Urgent xerox certified copy be given to the parties, if applied for, expeditiously.