IMPORTANT POINT
A transfer of case under Section 407 of the Cr.P.C. requires substantiated claims of bias and prior application to the Sessions Judge, which was not followed in this case.

JUDGMENT :

UDAY KUMAR, J.

1. The petitioner filed an application under Section 407 (1) of the Code of Criminal Procedure, 1973, (hereinafter referred to as ‘Cr.P.C.’) for withdrawal or transfer of Miscellaneous Case No.515 of 2016 from Ld. Judicial Magistrate 2nd Court, Barrackpore (hereinafter referred to as ‘Ld. Trial Court’) to any court of Ld. Magistrate at Bidhannagar complex or to dispose it of and to stay its further proceedings and to set aside the order dated 14.10.2022 passed in CMC No.11 of 2022 by Ld. Chief Judicial Magistrate North 24 Paraganas at Barasat. (Hereinafter referred to as ‘Ld. C.J.M.’).

2. Brief facts of the case necessary to be noted for deciding this criminal revision are that the petitioner Subham Roy Choudhury and Opposite Party No. 2 Sreejoyee Chakraborty (hereinafter referred to as ‘O.P.2’) are husband and wife. Their marriage was solemnized on 22ndFebruary, 2016, as per Hindu Rites and Rituals and Sreejoyee stayed together at her matrimonial home i.e., at 50/1/4B, Raja Rammohan Ray Road, P.S-Haridevpur. Dist-South 24 Parganas, for five days, when she returned to her father’s house for some medical tests. Thereafter, the petitioner came to know that his wife has been suffering from a disease ‘post splenectomy ITP relapsed’ for nine years. It was an advanced stage of cancer.

3. Being shocked by this information, petitioner filed a suit for decree of nullity of his marriage on the ground that his wife had concealed and suppressed the material fact of her illness from him prior to the marriage. Had he been informed earlier; he could never have given his consent for marriage to her. Since, his consent was taken fraudulently, he sought his marriage to be declared null and void. Accordingly, MAT Suit No.42 of 2016 was started and had been pending before the Additional District Judge, 5th Court at Alipore, North 24 Parganas for disposal.

4. The notice of the said MAT suit No.42 of 2016 case, was served to the O.P. 2/wife. After getting the notice, she filed a maintenance case, being number M-515 of 2016, to claim maintenance from her husband/the petitioner, which is pending before the Learned Judicial Magistrate, 2nd court, Barrackpore.

5. The Petitioner/husband appeared in the maintenance proceeding and filed an application under Section 340 of the Cr.P.C read with Sections 195, 191 & 193 of Indian Penal Code, 1860, which was rejected by Learned Judicial Magistrate, 2nd court Barrackpore on 01.08.2018.

6. The petitioner challenged the said order of rejection before this Court in CRR No.2303 of 2019, wherein Hon’ble Co-ordinate Bench set aside the impugned order of Learned Judicial Magistrate, 2nd court Barrackpore, dated 01.08.2018 vide his order dated 12.04.2021 and directed Learned Judicial Magistrate, 2nd court Barrackpore to take up the maintenance proceeding being case number Miscellaneous 515 of 2016 along with the application filed by petitioner under Section 340 of the Cr.P.C.

7. Prior to passing of this direction, Ld. Trial Court had already granted interim maintenance to the O.P.2/wife in Miscellaneous 515 of 2016, vide his order dated 05.09.2019, but the petitioner did not pay maintenance in compliance of the said order. Consequently, the O.P.2/wife initiated an execution proceeding against petitioner being Miscellaneous Execution Case number 67 of 2022, but the petitioner preferred a revision being CRR 1832 of 2022, for quashing or setting aside or stay of the execution proceedings being M. Ex. 67 of 2022 arising out of the maintenance case being number M. 515/2016, till the disposal of perjury case filed by petitioner under Section 340 of Cr.P.C. as directed by the Hon’ble Court in C.R.R 2303 of 2019 dated 12-04-2021.

8. The Co-ordinate Bench observed that under no circumstances, the trial of M. Case 515/2016 be further stalled and the same should be taken to its logical conclusion within a reasonable period of time and completed within a year from the date of communication of this order to Ld. Tri