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Mihir Saha-vs-Madhu Chhanda Saha And Anr. on 18 April, 2000

Calcutta High Court Mihir Saha-vs-Madhu Chhanda Saha And Anr. on 18 April, 2000
Equivalent citations:I (2001) DMC 432
Author: M K Basu
Bench: M K Basu

JUDGMENT

Malay Kumar Basu, J.

1. This is an application under Section 407(1)(c) of the Code of Criminal Procedure for an order transferring the criminal case being Balurghat Police Station Case No. 66/97 dated 14th February, 1997 under Sections 498-A, 406, 497 and 120, I.P.C. corresponding to G.R, Case No. 205 of 1997 from the Court of the learned Sub-Divisional Judicial Magistrate, Balurghat to any other Court in the State.

2. The case of the petitioner is that he married the opposite party No. 1 according to the Hindu rites on 26th February, 1993 at Balurghat and since after the marriage the opposite party No. 1 lived with him as his wife at his father’s house at Cooch Behar. Later, on 22nd January, 1995, the opposite party No. 1 left her matrimonial home without any rhyme and reason and did not return. Thereafter a divorce suit was filed by the petitioner at Cooch Behar Court which is still pending in the Court of the learned District Judge, Cooch Behar. Subsequently, the opposite party No. 1 filed a complaint in the Court of the Chief Judicial Magistrate, Balurghat on 20th November, 1996 under Sections 498A, 406, 497 and 120, I.P.C. against the petitioner. That case is now pending in the said Court at Balurghat. The petitioner accused being a Bank employee has since been transferred to Chinsurah Branch of the Bank and has now been residing there. He was granted anticipatory bail in connection with that criminal case and later, he surrendered himself before the Court of the Chief Judicial Magistrate, Balurghat and obtained regular bail. When the petitioner went to surrender before that Court on 30th July, 1997 an untoward incident took place at the instance of the opposite party No. 1. She engaged some rowdy elements and the petitioner was manhandled by them. The petitioner’s Advocate who accompanied him from Chinsurah was also attempted, but he narrowly escaped. After returning to Chinsurah, he lodged a General Diary by registered post to Balurghat Police Station over this incident. While at Chinsurah, he has been threatened over telephone by the opposite party No. 1 and her men with severe assault, if he be found at Balurghat. The petitioner apprehends physical assault at the hands of the rowdy agents of the opposite party No. 1 in the event he enters his appearance at Balurghat in connection with the said criminal case. He has engaged an Advocate at Balurghat for the purpose of management of the case and he is now and then in need of consulting with that learned Advocate, but in view of the aforementioned threat on his life and limb, he is not in a position to personally appear at Balurghat. Moreover, the Magistrate of Balurghat has no territorial jurisdiction to try the said criminal case since the alleged offence had been committed, if at all, within the jurisdiction of the District of Cooch Behar where the matrimonial home of the opposite party No. 1 is situated.

3. Due to these reasons the petitioner has filed this application for transferring the criminal case from the Court of the learned Magistrate, Balurghat to the Court of the Chief Judicial Magistrate, Cooch Behar or any other Court outside the district of Dakshin Dinajpur.

4. Under Section 407(1), Cr.P.C. whenever it is made to appear to the High Court that a fair and impartial enquiry or trial cannot be had in any Criminal Court subordinate thereto; or that some question of law of unusual difficulty is likely to arise; or 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 175 (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. It is to be marked that the ground mentioned in the instant petition does not find place within any one category provided under this section. The ground here is that the accused person has encountered threat to his life by the complainant who happens to be his wife. In such an exigency the proper remedy is utilisation of the law and order-enforcing machineries to the maximum extent possible and not transferring the case from one Court to another.

5. Mr. Goswami, learned Advocate for the petitioner has relied upon a Single Bench decision of Allahabad High Cou’t reported in 1990 Cr. LJ 400, Ram Preet Singh v. State of Uttar Pradesh. In this case, it has been held that in view of impending grave danger to the life of the applicant in the event he is obliged to surrender before the Court at Haridwar, it was just and proper to direct the applicant to appear before the Court of C.J.M., Allahabad and the C.J.M., Allahabad was directed to dispose of the bail application, if any, filed by the said accused-applicant the same day and also to accept the bail bonds, to his satisfaction in the event bail was granted and the applicant submitted bail bonds. Mr. Goswami points out that although the Court which had the territorial jurisdiction and where the case had been actually filed was at Haridwar, the Hon’ble High Court, in consideration cf the serious threat to the safety and security of the accused in this particular case, allowed him to surrender before the Court of Chief Judicial Magistrateat Allahabad and the circumstances, in the present case, being similar, similar relief should be awarded to the applicant-accused.

6. As against this, Mr. Banerjee, learned Advocate for the opposite party cites a decision of the Apex Court reported in 1983 Cr. LJ 437, Popat Rambhaji Sonavane and Ors. v. State of Maharashtra and Anr. In this ruling. Their Lordships of the Supreme Court have held that where the petitioner complainant sought transfer of the Sessions case under Sections 395, 341, 504 and 506, 1.P.C. from Pune to Indore on the solitary ground that if transfer was not granted his safety would be in danger, that was too nebulous a ground for transferring the case in which all four witnesses were from Pune. Their Lordships, however, did not pay a deaf ear to the woes and worries of the petitioner and observed that their apprehension regarding safety and security could be properly taken care of by the fact that the State Counsel undertook to extend all possible facilities to ensure his safety and security.

7. Mr. Banerjee cites anotherjudgment of a Single Bench of this Court reported in 1998 C. Cr. LR (Cal.) 334. In respect of a maintenance case under Section 125 between the same parties it has been held that such apprehension is not a valid ground for transferring a proceeding from one Court to another and that in such an exigency the petitioner is at liberty to move the Court of Magistrate at Balurghat where the case is pending for providing protection to his life during the course of his appearance in Court.

8. Still another decision of this Court has been relied upon Mr. Banerjee reported in 1999 (4) SLR 25 (Cal.)=I (2000) DMC 676, Subodh Ch. Majumder v. Mina Majumder (Misra), wherein it has been held that where it is alleged by the petitioner in a petition under Section 407, Cr.P.C. that the opposite party with the help of some anti-social elements has been threatening him with dire consequences if he again appeared in Court to contest the case, the provision of Section 407, Cr.P.C. would not be applicable and the remedy to such problems does not lie in transfer of the case to another place.

9. It should be mentioned that the facts and the circumstances in the decision referred to by Mr. Goswami in 1990 Cr LJ 400 (supra) are distinctly distinguishable from those of the present case. In that case under reference, there was no application under Section 407 for transfer of the cae to a different Court for trial, but the learned Court was exercising its writ jurisdiction at a stage of granting of bail or surrender of the accused person. Secondly, the order of the learned Court in favour of the accused petitioner that he should surrender in a different Court was not passed at the very first instance. At the first instance, the petitioner was directed to be given all sorts of protective measures and when even after being supplied with adequate protection by police, the applicant was terrorised while he was surrendering before the Court where the criminal case had been actually filed, that the learned Court passed such an exceptional order for ends of justice.

10. In the present case, the situation is altogether different. The applicant entered his appearance before the Court of Magistrate at Balurghat only on one occasion and as per his averments on that very occasion he had to face some untoward incident including attempt at physical assault. Since then he has never gone there. The provisions as laid down under Section 407, Cr.P.C. do not contain any clause whereunder such threat to safety and security irk respect of a particular party can be a valid ground for transfer of the case. In such exigencies, the best course will be to ensure adequate protective measures being adopted touching the all round safety and security of the subject during the period while he will have to appear before that Court in connection with hearing of the case.

11. It is, therefore, ordered that the application for transfer of the case under Section 407, Cr.P.C. is unacceptable and hence is dismissed. The applicant, however, will be at liberty to move the Court of Chief Judicial Magistrate, Balurghat to arrange for suitable measures to provide for him sufficient guards to ensure his personal safety and security so long as he will stay within the jurisdiction of Balurghat Police Station in connection with the hearing of this case.

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