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IN THE HIGH COURT AT CALCUTTA
Provandu Narayan Sinha, J.
Mohan Sharma & Ors. – Petitioners
Versus
State of West Bengal & Ors. – Respondents
C.R.R. No. 1442 of 2002
Decided On : November 29, 2002
TRANSFER OF SESSIONS CASE - DIFFICULTY IN APPOINTING COUNSEL - FEAR OF POLITICAL PRESSURE - SECTION 407 CR.P.C. - INTERPRETATION AND APPLICATION: In a case involving the transfer of a sessions case under Section 407 of the Code of Criminal Procedure (Cr.P.C.), the court examined the ground of difficulty in appointing competent counsel to defend the accused persons due to fear of political pressure. SUMMARY: 1. Petitioners, accused in a sessions case involving an attempt on the life of the Chairman of the Darjeeling Gorkha Hill Council (DGHC), filed an application under Section 407 of Cr.P.C. seeking transfer of the case from the Court of Sessions Judge, Darjeeling to a competent court beyond the district. 2. Petitioners alleged that they faced difficulty in appointing counsel due to pressure exerted by supporters of DGHC Chairman on advocates in the district. 3. The court noted that the petitioners were unable to engage lawyers to defend themselves due to threats from supporters of a political party, creating a fear psychosis in the Darjeeling hill area. 4. The court held that the failure of accused persons to engage lawyers was a valid ground for transfer of the sessions case. 5. The court emphasized the right of every citizen to defend themselves by engaging a competent lawyer of their choice, as guaranteed by Article 22 of the Constitution. 6. The court found that a fair and impartial trial at Siliguri, another location within the Darjeeling district, could not be expected due to the influence of GNLF supporters. 7. Hence, the court allowed the transfer of the sessions case to the Court of Sessions Judge, Jalpaiguri, outside the Darjeeling district, to ensure a fair and impartial trial. FACT OF THE CASE: - Petitioners were accused in a sessions case involving an attempt on the life of the DGHC Chairman. - Petitioners faced difficulty in appointing counsel due to pressure exerted by supporters of DGHC Chairman on advocates in Darjeeling. - Petitioners filed an application under Section 407 of Cr.P.C. seeking transfer of the case from Darjeeling to a competent court beyond the district. FINDING OF THE COURT: - The court found that the petitioners were unable to engage lawyers to defend themselves due to threats from supporters of a political party, creating a fear psychosis in the Darjeeling hill area. - The court held that the failure of accused persons to engage lawyers was a valid ground for transfer of the sessions case. - The court emphasized the right of every citizen to defend themselves by engaging a competent lawyer of their choice, as guaranteed by Article 22 of the Constitution. - The court found that a fair and impartial trial at Siliguri, another location within the Darjeeling district, could not be expected due to the influence of GNLF supporters. ISSUES: - Whether the difficulty in appointing counsel due to political pressure constituted a valid ground for transfer of the sessions case under Section 407 of Cr.P.C. - Whether the right to a fair and impartial trial was compromised due to the fear psychosis created by political supporters in the Darjeeling hill area. RATIO DECIDENDI: - The court interpreted Section 407 of Cr.P.C. to include grounds beyond those specified in the other clauses, if such grounds indicate the necessity of a transfer to secure justice and a fair trial. - The court held that transfer is justified not only when a fair and impartial trial is impossible, but also when there is a reasonable and bona fide apprehension that a fair trial cannot be had. - The court recognized the importance of the right to defend oneself by engaging a competent lawyer, as enshrined in Article 22 of the Constitution. - The court emphasized that a trial should not be a mockery and that every accused deserves a fair and impartial trial. FINAL DECISION: - The court allowed the transfer of the sessions case from Darjeeling to Jalpaiguri to ensure a fair and impartial trial. MAIN LEGAL POINT: - The court established that the failure of accused persons to engage lawyers due to fear of political pressure constitutes a valid ground for transfer of a sessions case under Section 407 of Cr.P.C., in order to secure justice and a fair trial. CATEGORY: Criminal Law SUB-CATEGORY: Transfer of Cases
This is an application under Section 407 of Cr.P.C. filed by the petitioners praying for transfer of Sessions Case No.7 of 2002 from the Court of learned Sessions Judge, Darjeeling to a competent Court of coordinate jurisdiction beyond the District of Darjeeling.
2. The petitioners case, in brief, is that they have been arraigned as accused persons in connection with Kurseong P.S. Case No. 9 dated 10.2.2001 under Sections 120B/34/302/307/326 of Indian Penal Code read with Sections 25/27/29/35 of the Arms Act and Sections 3 and 4 of the Explosives Substance Act read with Section 3 of the Prevention of Damage to Public Property Act. In the instant case there was an attempt made on the life of Shri Subhas Ghishing; Chairman of the Darjeeling Gorkha Hill Council (hereinafter called as DGHC) and due to this supporters of Gorkha National Liberation Front (hereinafter called as GNLF) started violent agitation in the District of Darjeeling as a result of which normal life was completely dislocated. They in course of their appearance before the Court below found it difficult to appoint counsels to appear on their behalf due to the pressure exerted on the Advocates of the District of Darjeeling by the supporters of Shree Ghishing. The investigating agency after completing investigation filed charge sheet No. 17 dated 11.5.2001. The petitioners filed application before the High Court praying for their release on bail and the High Court was pleased to direct release of the petitioners on bail. Before their physical release could be effected on the basis of bail bonds, State of West Bengal moved an application before the Hon’ble Supreme Court praying for cancellation of their bail.
3. In course of hearing of the special leave petition the Supreme Court of India called for case diary of the Kurseong P.S. Case No.9 of 2001 vide order dated 24.9.2001 and the learned S.D.J.M. Kurseong directed the Court Inspector to produce the case diary before the Supreme Court. Thereafter, on several occasions copies of documents intended to be relied upon by the prosecution could not be supplied to the petitioners as the case diary had been sent to the Supreme Court. The prosecution started exerting tremendous pressure upon the S.D.J.M., Kurseong for commitment of the case to Court of Sessions. Learned S.D.J.M. vide order dated 14.12.2001 held that commitment of the case was not possible as copies required to be supplied to the accused persons under Section 207 of Cr.P.C. cannot be supplied to the petitioners as the case diary was lying before the Supreme Court. In spite of that the S.D.J.M., Kurseong by his order dated 16.2.2002 committed the case to the Court of Sessions without complying with the provisions of Section 207 of Cr.P.C. The petitioners were released on bail after the Supreme Court dismissed the special leave petition on 4.4.2001.
4. The petitioners fear and believe that they may not receive fair and impartial trial in any Court situated within the District of Darjeeling as the administrative machinery is in cohorts with Subhas Ghishing shall undertake all efforts to obtain conviction of the accused persons in connection with the instant case. They also fear that the Courts of law may not also be immune from illegal pressure which may be exerted by the District Administration. Majority of the prosecution witnesses reside equity distant between the place of trial and Jalpaiguri and if the case is transferred to Jalpaiguri the witnesses would not be inconvenient due to such transfer. In the circumstances stated above the petitioners pray for transfer of the Sessions Case No.7 of 2001 from the Court of the learned Sessions Judge, Darjeeling to a competent Court of co-ordinate jurisdiction beyond the Distict of Darjeeling.
5. Appearing for the petitioners Mr. Bose and Mr. Mukherjee contended that the District Administration in order to appease the sentiments of supporters of GNLF started indiscriminate arrest of persons who held political
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