Ashim Kumar Roy, J.@mdashBoth the aforesaid Criminal Revisions are arising out of the self-same Sessions Case SC 2(7) 13, pending before the Learned Additional Sessions Judge, Fast Track, Third Court, Barasat, North 24-Parganas, where 8 accused persons on being charge-sheeted u/s 376A/376D/302/342/201/109/120B IPC, are awaiting to face the question of framing charge against them. The first Criminal Revision, C.R.R. No. 2570 of 2013 has been moved for a direction for immediate commencement of the Trial and expeditious conclusion of the same, whereas the other Criminal Revision, C.R.R. No. 2583 of 2013 has been moved at the behest of the 8 Charge sheeted accused persons for the transfer of the said Sessions Case to any other Sessions Division.
2. In my endeavour to give a decision on the core issues viz., whether the Trial Court be directed to conclude the trial speedily and the trial in question be transferred to some other session division, I may begin with the fact that in connection with the self-same sessions case a public interest litigation being W.P. 16482 (W) of 2013 was moved before this Court by a public spirited lawyer, seeking direction for further investigation by a different investigating agency being monitored by High Court. It may be noted neither the charge-sheeted accused, who are the opposite parties in the first Criminal Revision and petitioners in the second Criminal Revision nor the de facto complainant who is a opposite party in both the Criminal Revisions, were the parties in the said public interest litigation. The said public interest litigation has been disposed of, on August 1, 2013 and the prayer for further investigation by a different agency under High Court''s monitoring has been declined. Although rejection of the prayer for further investigation is not of much bearing towards the decision in the aforesaid Criminal Revisions, but certain observations made by the Division Bench presided over by the Hon''ble Chief Justice are of great relevance. Those observations are summed up below:
(1) The competent Court at Barasat is trying the case in a fair manner. Thus, what was pointed out that the trial would not be made fairly, stands ruled out at this stage.
(2) In case, there is any deficiency, the same can be looked into by the Court trying the case in an effective manner.
(3) It would not be appropriate to issue any further direction with respect to the investigation. It would also not be appropriate to issue any direction with respect to the deficiency in the investigation, if any, sitting in writ jurisdiction of this Court as the competent Court, at Barasat is trying the case that too stated to be in a fair manner.
(4) As per the of amended provisions added by amendment made u/s 24(8) of the Code of Criminal Procedure, the Court may permit the victim to engage an Advocate of his choice to assist the (sic)cution. We direct the Trial Judge is directed to permit the (sic) to engage an advocate of their choice to assist the prosecution as provided in the aforesaid provisions.
It is open to the victims not only to assist prosecution but also to point out the deficiency, if any.
(5) The Trial Judge should take into consideration the proviso to Section 309 of the Code of Criminal Procedure to expedite the trial but at the same time, ensure fair trial in the interest of all the parties.
(6) It was also submitted that the accused has unnecessarily filed a petition so as to delay the trial for transfer of the same before the Single Bench. As the matter is not before us, we refrain ourselves from making any comment on the aforesaid submissions. The application is to be decided by the Single Bench.
Thus, from the aforesaid observations of the Division Bench it boils down,
(a) There is no fault or lapse in the investigation done by the State police and if there is any deficiency same to be looked into by the Trial Court in effective manner.
(b) A competent Court is trying the case in a fair manner, thus what was pointed out the trial would not be made fairly stands ruled out at that stage.
(c) The victims be permitted to engage Advocate of his choice to assist the prosecution and it will be open to the victims not only to assist the prosecution but also to point out the deficiency, if any.
(d) The trial to be expedited taking into consideration the proviso to section 309 of the Code of Criminal Procedure and at the same time fair trial in the interest of all the parties be ensured.
(e) So far as the question of transfer of trial is concerned, it is now for this Court to decide the same independently.
3. While the learned Public Prosecutor appearing in support of the first criminal revisional application urged that the Court concerned before which the matter is now pending for trial be directed for its expeditious conclusion and although Mr. Phiroze Edulji appearing on behalf of the accused persons conceded to such prayer but Mr. Bikash Bhattacharya and Mr. Jayanta Narayan Chatterjee both appearing on behalf of the de facto complainant, at different stages, vehemently resisted such prayer. According to the Counsels of the de facto complainant, not only the investigation was conducted in a perfunctory way but deliberately in the charge sheet police highlighted and included such materials, clearly intending to pave the way for the real miscreants, who are closely associated with ruling party so that they are ultimately exonerated in the trial and unless the case is re-investigated by a different investigating agency like SIT not only the family of the victim will suffer serious prejudice but also there will be a complete failure of justice. They then added a public spirited lawyer practicing in this Court Mr. Anindya Sundar Das has moved a Public Interest Litigation being W.P. No. 16482 (W) of 2013 seeking further investigation by SIT and the said application is still pending and therefore if any order for expeditious conclusion of the trial is passed by this Court and at the same time in the Public Interest Litigation, further investigation is directed there will be an anomalous situation leading to serious crisis.
4. Now, after the aforesaid public interest litigation being disposed of, rejecting the prayer for further investigation by a different agency being monitored by the Hon''ble High Court and after there being a specific direction that the conclusion of the trial be expedited and proviso to section 309 Cr.P.C. shall strictly be followed in this regard, no further order is needed to be passed in the first criminal revision.
5. However, considering the facts that in this case supplementary charge sheet has been filed against three accused persons, showing one of them absconder and on July 22, 2013 the Court below issued warrant of arrest and proclamation of attachment against that accused fixing August 23, 2013 for execution report, now it will be just and proper to direct, if not by the next day fixed, the police is able to execute the warrant of arrest against the absconding accused and found there is no immediate prospect of arresting him, then in that case the prosecution shall have the liberty to move the Court concerned for proceeding with the trial in terms of section 299 Cr.P.C. after splitting up the case of the said absconding accused from the case of eight other accused''s, who are in custody. This direction will not only sub-serve the ends of justice but would certainly ensure the direction of the Division Bench.
6. The next criminal revision C.R.R. No. 2583 of 2013 relates to an application for transfer of the trial relating to the S.C. 2 (7) 13, now pending before the learned Additional Sessions Judge, Fast Track, 3rd Court, Barasat, where the petitioners are placed on trial subject to framing of charge to any other nearest Sessions Division.
7. Mr. Phiroze Edulji appearing on behalf of the accused/petitioners in support of this application for transfer submitted as follows;
(a) Except the petitioner Nos. 7 and 8, that too for a brief period, no other accused, was able to avail the service of a lawyer and they were going un-represented in the Court below from the very beginning of their production in Court after their arrest and such facts would be evident from the records of the Court below.
(b) Not only that the Advocates of the local Bar, Barasat Court have resolved that they would not defend the accused persons in this case, they have also staged protest against accused''s outside the Court premises demanding exemplary punishment for them. Even the accused''s were not in a position to obtain the certified copy of the orders passed from day to day.
In this regard my attention was drawn to the news item published in Hindustan Times, a widely circulated News Paper in this State, in its issue dated June 12, 2013 and some photographs showing the lawyers were staging protest demanding punishment for the accused persons, being the annexure "P/2" to this application.
(c) Till date because of non-availability of lawyers even no bail application has been moved for the accused persons.
(d) The relatives of the accused/petitioners were so frightened that they never dared to present in the Court premises, when the accused/petitioners were produced there, on the face of the threats held out of them by the unruly mob gathered there.
(e) On each day of production of the accused/petitioners in Court starting from the date of their first production after arrest before the Court of Learned Chief Judicial Magistrate, Barasat as well as before the Sessions Court, a huge unruly mob collected outside the Court premises and surrounded it from all sides and started shouting slogans demanding exemplary punishment for the accused''s, even the sentence of death before their regular trial. They also demanded that the accused persons be handed over to them so that instant justice be meted out to them and a huge contingent of police was deployed to tackle such burning situation.
In this regard the Learned counsel for the petitioners draws my attention to the news articles downloaded from Internet and several photographs of the unruly mob gathered at the Court premises and annexed with this application.
(f) The learned advocate of the petitioners then contended in such a surcharge atmosphere and when the accused persons are not getting the service of the lawyers of their own choice, although they are sufficiently capable to take their service, at their own expenses and when no local lawyers far less the criminal lawyers experienced in sessions trial are available to them, it would be expedient in the interest of justice and for fair trial, the trial be transferred to some other Court in a different sessions division.
The learned Advocate of the petitioners in this regard relied on following decisions
8. It may be noted, in the midst of hearing of the first criminal revision, the learned counsel for the accused persons informed this Court, in presence of the learned counsel of the de facto complainant and the State that he was going to file a substantive application for transfer of the trial, with the liberty to serve copy of such application before hand on the State and the de facto complainant. When this Court observed that the parties shall have the liberty to exchange their affidavits in the meantime. Despite the application for transfer was served upon both the parties in advance still no affidavit was filed on their behalf nor any prayer in that regard was made.
9. The learned Counsel for the de facto complainant, however, in his argument vehemently opposed the prayer for transfer. He submitted most of the key witnesses are from the Kamduni village where this unfortunate incident took place and now if the venue of the trial is shifted that would cause great hardship to them to attend the Court proceedings at a far away place. Further more, that would be advantageous for the associates of the accused persons to terrorise the witnesses, so that they must not depose against them. Already, the associates of the accused persons have started terrorising the witnesses. Now, if the venue is changed, the witnesses will be kidnapped and killed and the life of the witnesses and de facto complainant will be at stake. He further submitted no case has been made out which may justify transfer of the trial except bringing some bald allegations which have no foundation. He further submitted no resolution has been taken by the Barasat Bar Association preventing its members to participate in trial for the accused''s and the public agitation is quite natural in a case of brutal crime like this, but same has nothing to do with the fair trial when there is no allegation against the Court concerned. He added that this type of agitation for demand of justice relating to crime against woman is very common not only in this State but also in other States and all over the world.
10. The learned Public Prosecutor, however, has not disputed the contention of the learned advocate of the petitioners and conceded if the case is transferred to any nearest sessions division from the side of the State there is no objection. He assured this Court that the State shall take all steps so that the local witnesses are safely reached the Court and are able to depose in the Trial without any fear or threat. He further submitted at the State expenses they will be taken to the venue of trial on the date fixed for their evidence, if necessary in a private car with adequate police escorts and all incidental expenses will also be borne out. He further assured even if the close relations of the victim intend to be present in Court during the trial, similar arrangement also be made for them. So far as the other witnesses are concerned, the State shall ensure their presence in Court on the date fixed for their evidence and all necessary arrangement shall also be made for them. He lastly submitted the State shall ensure that trial must be over in accordance with law as expeditiously as possible and the guilties are adequately punished.
11. The only question thus arises for decision in this Criminal Revision, whether it would be expedient in the interest of justice to transfer the Sessions Case in which the accused petitioners have been placed to face their trial, deserves to be transferred to some other sessions division from the Court where it is now pending. While deliberating on the issue as I felt that a report from the learned Sessions Judge, North 24-Parganas be called for in this regard, I called for a report and same is submitted and is with the records.
12. Now, before adverting to the core issues whether in the given circumstances the trial to be transferred, I am of the view it would be more apposite to consider the views of the Hon''ble Apex Court on the question of transfer from one session division to another.
(a) In the case of G.X. Francis v. Banke Behari Singh (supra), the background fact was a defamation case against some Christians brought by a non-Christian. In the said case a three Judges Bench of the Hon''ble Apex Court while transferring the case at paragraph 15 concluded as follows;
"In view of the unanimity of testimony from both sides about the nature of the surcharged tension in this area, we consider that the local atmosphere is not conducive to a fair and impartial trial and so, following our earlier precedents, we are of the opinion that there must be a transfer".
I feel apart from the above conclusions of the Apex Court, its observations in paragraph 9 must also be referred and the same is quoted below;
.........."But we do feel that good grounds for transfer from Jashpurnagar are made out because of the bitterness of local communal feeling and the tenseness of the atmosphere there. Public confidence in the fairness of a trial held in such an atmosphere would be seriously undermined, particularly among reasonable Christians all over India, not because the Judge was unfair or biased but because the machinery of justice is not geared to work in the midst of such conditions. The calm detached atmosphere of a fair and impartial judicial trial would be wanting, and even if justice were done it would not be "seen to be done".......(Para 9).
(b) Subsequently a Constitutional Bench of the Supreme Court in the case of State of M.P. v. Shobharam & Ors. (supra), while considering the scope of the right of an accused to be defended by a legal practitioner of his choice, observed as follows in paragraph 3;
"It seems to us fairly clear that a person arrested has the constitutional right to consult a legal practitioner concerning his arrest. It is also clear that a person arrested has the constitutional right to be defended by a legal practitioner. But, against what is he to be defended? We think that the right to be defended by a legal practitioner would include a right to take steps through a legal practitioner for release from the arrest"...........
Then in paragraph 4;
"But, it is the right to be defended by a legal practitioner conferred only on a person arrested? We do not think so. In our opinion, the right to be defended by a legal practitioner extends also to a case of defence in a trial which may result in the loss of personal liberty. On the other hand, in our view, where a person is subjected to a trial under a law which does not provide for an order resulting in the loss of his personal liberty, he is not entitled to the constitutional right to defend himself at the trial by a legal practitioner. The reason is that Arts. 21 and 22 of the Constitution are concerned only with giving protection to personal liberty. That is strongly indicated by the language used in these Articles and by the context in which they occur in the Constitution." ..........
And, finally, in paragraph 23 and 28 observed followings.
"As I have stated already a person who is arrested gets three rights which are guaranteed. The first is that he must be told why he is arrested. This requirement cannot be dispensed with by taking bail from him. The need to tell him why he is arrested, remains still. The next is that the person arrested must not be detained in custody more than 24 hours without being produce before a Magistrate. This requirement is dispensed with when the person arrested is admitted to bail. Otherwise it remains. The third is that he gets a right to consult and to be defended by a legal practitioner of his choice. This is, of course, so while the arrest continues but there are no words to show that the right is lost no sooner, than he is released on bail. The word ''defended'' clearly includes the exercise of the right so long as the effect of the arrest continues. Before his on bail the person defends himself against his arrest and the charge for which he is arrested and after his release on bail, against the charge he is to answer and, for answering which, the bail requires him to remain present. The narrow meaning of the word ''defended'' cannot be accepted". (para 23).
"The Criminal Procedure Code allows the right to be defended by counsel but that is not a guaranteed right. The framers of the Constitution have well-thought of this right and by including the prescription in the Constitution have put it beyond the power of any authority to alter it without the Constitution being altered. A law which provides differently must necessarily be obnoxious to the guarantee of the Constitution. There is nothing in the worth of the Constitution which permits any authority to alter this condition even on grounds of public interest as is the case with the guaranteed rights in Art. 19. Nor can we by a niggling arguments lessen the force of the declaration so explicit in its terms or whittle down its meaning by a specious attempt at supposed harmony between rights which are not interdependent. There are three rights and each stands by itself. The first is the right to be told the reason of the arrest as soon as an arrest is made, the second is the right to be produced before a Magistrate within twenty-four hours and the third is the right to be defended by a lawyer of one''s choice. In addition there is the declaration that no person shall be deprived of his personal liberty except by procedure established by law. The declaration is general and insists on legality of the action. The rights given by Art. 22(1) and (2) are absolute in themselves and do not depend on other laws. There is no force in the submission that if there is only a punishment of fine and there is no danger to personal liberty the protection of Article 22(1) is not available. Personal liberty is invaded by arrest and continues to be restrained during the period a person is on bail and it matters not whether there is or is not a possibility of
imprisonment. A persons arrested and put on his defence against a criminal charge, which may result in penalty, is entitled to the right to defend himself with the aid of counsel and any law that takes away this right offends against the Constitution. In my judgment, therefore, S. 63 of the Panchayat Act being inconsistent with Art. 22(1) became void on the inauguration of the Constitution in so far as it took away the right of an arrested person to be defended by a legal practitioner of his choice". (para 28)
(c) In its very recent decision in the case of Md. Hussain alias Julfikar Ali v. State (Govt. of NCT) Delhi (supra), the Apex Court reiterated in paragraph 13 what it observed earlier in the case of
In Maneka Gandhi v. Union of India, it has been held by a Constitution Bench of this Court that the procedure for depriving a person of his life or liberty should be fair, reasonable and just. We are of the opinion that it is not fair or just that a criminal case should be decided against an accused in the absence of a counsel. It is only lawyer who is conversant with law who can properly defend an accused in a criminal case. Hence, in our opinion, if a criminal case (whether a trial or appeal/revision) is decided against an accused in the absence of a counsel, there will be violation of Article 21 of the Constitution.
The right to appear through counsel has existed in England for over three centuries. In ancient Rome there were great lawyers e.g. Cicero, Scaevola, Crassus, etc. who defended the accused. In fact the higher the human race has progressed in civilisation, the clearer and stronger has that right appeared, and the more firmly has it been held and asserted. Even in the Nuremberg trials the Nazi war criminals, responsible for killing millions of persons, were yet provided counsel. Therefore when we say that the accused should be provided counsel we are not bringing into existence a new principle but simply recognising what already existed and which civilised people have long enjoyed. (para 13)
Then in para 16 the Apex Court referred the observation of the Allahabad High Court in the case of
The requirement of providing counsel to an accused at the State expense is not an empty formality which may be not by merely appointing a counsel whatever his calibre may be. When the law enjoins appointing a counsel to defend an accused, it means an effective counsel, a counsel in real sense who can safeguard the interest of the accused in best possible manner which is permissible under law. An accused facing charge of murder may be sentenced to death or imprisonment for life and consequently his case should be handled by a competent person and not by a novice or one who has no professional expertise. A duty is cast upon the Judges before whom such indigent accused are facing trial for serious offence and who are not able to engage a counsel, to appoint competent persons for their defence. It is needless to emphasis that a Judge is not a prosecutor and his duty is to discern the truth so that he is able to arrive at a correct conclusion. A defence lawyer plays an important role in bringing out the truth before the Court by cross-examining the witnesses and placing relevant materials or evidence. The absence of proper cross-examination may at times result in miscarriage of justice and the Court has no guard against such an eventuality. (para 16)
Then in paragraph 17 of the judgement the Apex Court recorded its own finding;
The Cr.P.C. provides that in all criminal prosecutions, the accused has a right to have the assistance of a counsel and the Cr.P.C. also requires the Court in all criminal cases, where the accused is unable to engage counsel, to appoint a counsel for him at the expenses of the State. Howsoever guilty the appellant upon the inquiry might have been, he is until convicted, presumed to be innocent. It was the duty of the Court, having these cases in charge, to see that he is denied no necessary incident of a fair trial. In the present case, not only the accused was denied the assistance of a counsel during the trial and such designation of counsel, as was attempted at a late stage, was wither so indefinite or so close upon the trial as to amount to a denial of effective and substantial aid in that regard. The Court ought to have seen to it that in the proceedings before the Court, the accused was dealt with justly and fairly by keeping in view the cardinal principles that the accused of a crime is entitled to a counsel which may be necessary for his defence, as well as to facts as to law. The same yardstick may not be applicable in respect of economic offences or where offences are not punishable with substantive sentence of imprisonment but punishable with fine only. The fact that the right involved is of such a character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our judicial proceedings. The necessity of counsel was so vital and imperative that the failure of the Trial Court to make an effective appointment of a counsel was a denial of due processes of law. It is equally true that the absence of fair and proper trial would be violation of fundamental principles of judicial procedure on account of breach of mandatory provisions of section 304 of Cr. PC. (para 17).
(d) In the case of Md. Ajmal Md. Amir Kasab alias Abu Mujahid v. State of Maharashtra (supra), decided subsequently at paragraph 473, 474, 475, 477 and 478 the Hon''ble Supreme Court observed as follows;
To deal with one terrorist, we cannot take away the right given to the indigent and underprivileged people of this country by this Court thirty-one (31) years ago. (para 473)
We, therefore, have no hesitation in holding that the right to access to legal aid, to consult and to be defended by a legal practitioner, arises when a person arrested in connection with a cognizable offence is first produced before a. Magistrate. We accordingly, hold that it is the duty and obligation of the Magistrate before whom a person accused of committing a cognizable offence is first produced to make him fully aware that it is his right to consult and be defended by a legal practitioner and, in case he has no means to engage a lawyer of his choice, that one would be provided to him from legal aid at the expense of the State. The right flows from Articles 21 and 22(1) of the Constitution and needs to be strictly enforced. We, accordingly, direct all the Magistrates in the country to faithfully discharge the aforesaid duty and obligation and further make it clear that any failure to fully discharge the duty would amount to dereliction in duty and would make the Magistrate concerned liable to departmental proceedings. (para 474)
It needs to be clarified here that the right to consult and be defended by a legal practitioner is not to be construed as sanctioning or permitting the presence of a lawyer during police interrogation. According to our system of law, the role of a lawyer is mainly focused on Court proceedings. The accused would need a lawyer to resist remand to police or judicial custody and for granting of bail; to clearly explain to him the legal consequences in case he intended to make a confessional statement in terms of section 164 Cr. PC; to represent him when the Court examines the charge-sheet submitted by the police and decides upon the future course of proceedings and at the stage of the framing of charges; and beyond that, of course, for the trial. It is thus to be seen that the right to access to a lawyer in this country is not based on the Miranda principles, as protection against self-incrimination, for which there are more than adequate safeguards in Indian laws. The right to access to a lawyer is for very Indian reasons; it flows from the provisions of the Constitution and the statutes, and is only intended to ensure that those provisions are faithfully adhered to in practice. (para 475)
Every accused unrepresented by a lawyer has to be provided a lawyer at the commencement of the trial, engaged to represent him during the entire course of the trial. Even if the accused does not ask for a lawyer or he remains silent, it is the constitutional duty of the Court to provide him with a lawyer before commencing the trial. Unless the accused voluntarily makes an informed decision and tells the Court, in clear and unambiguous words, that he does not want the assistance of any lawyer and would rather defend himself personally, the obligation to provide him with a lawyer at the commencement of the trial is absolute, and failure to do so would vitiate the trial and the resultant conviction and sentence, if any, given to the accused. (para 477).
But the failure to provide a lawyer to the accused at the pretrial stage may not have the same consequence of vitiating the trial. It may have other consequences like making the delinquent Magistrate liable to disciplinary proceedings, or giving the accused a right to claim compensation against the State for failing to provide him legal aid. But it would not vitiate the trial unless it is shown that failure to provide legal assistance at the pre-trial stage had resulted in some material prejudice to the accused in the course of the trial. That would have to be judged on the facts of each case. (para 478)
In this regard I feel two more authorities ought to be considered to reach to a just decision in the matter. The first one, is the decision of the Hon''ble Apex Court in the case of
(a) In the case of Gurucharan Dass Chadha v. State of Rajasthan (supra), this was the observation of the Apex Court in the concluding portion of the said judgement at paragraph 13;
............ "A case is transferred if there is a reasonable apprehension on the part of a party to a case that justice will not be done. A petitioner is not required to demonstrate that justice will inevitably fail. He is entitled to a transfer if he shows circumstances from which it can be inferred that he entertains an apprehension and that it is reasonable in the circumstances alleged. It is one of the principles of the administration of justice that justice should not only be done but it should be seen to be done. However, a mere allegation that there is apprehension that justice will not be done in a given case does not suffice. The Court has further to see whether the apprehension is reasonable or not. To judge of the reasonableness of the apprehension the state of the mind of the person who entertains the apprehension is no doubt relevant but that is not all. The apprehension must not only be entertained, but must appear to the Court to be a reasonable apprehension. (para 13)
(b) Similarly in the case of Maneka Sanjay Gandhi & Anr. v. Ms. Rani Jethmalani (supra), on this issue the Apex Court observed as follows;
Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the Court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini grievances. Something more substantial, more compelling, more imperiling, from the point of view of public justice and its attendant environment, is necessitous if the Court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. We have to test the petitioner''s grounds on this touchstone bearing in mind the rule that normally the complainant has the right to choose any Court having jurisdiction and the accused cannot dictate where the case against him should be tried. Even so, the process of justice should not harass the parties and from that angle the Court may weigh the circumstances. (para 2).
A more serious ground which disturbs us in more ways than one is the alleged absence of congenial atmosphere for a fair and impartial trial. It is becoming a frequent phenomenon in our country that Court proceedings are being disturbed by rude hoodlums and unruly crowds, jostling, jeering or cheering and disrupting the judicial hearing with menaces, noises and worse. This tendency of toughs and street roughs to violate the serenity of Court is obstructive of the course of justice and must surely be stamped out. Likewise, the safety of the person of an accused or complainant is an essential condition for participation in a trial and where that is put in peril by commotion, tumult or threat on account of pathological conditions prevalent in a particular venue, the request for a transfer may not be dismissed summarily. It causes disquiet and concern to a Court of justice if a person seeking justice is unable to appear, present one''s case, bring one''s witnesses or adduce evidence. Indeed, it is the duty of the Court to assure propitious conditions which conduce to comparative tranquility at the trial. Turbulent conditions putting the accused''s life in danger or creating chaos inside the Court hall may jettison public justice. If this vice is peculiar to a particular place and is persistent the transfer of the case from that place may become necessary. Likewise, if there is general consternation or atmosphere of tension or raging masses of people in the entire region taking sides and polluting the climate, vitiating the necessary neutrality to hold a detached judicial trial, the situation may be said to have deteriorated to such an extent as to warrant transfer. In a decision cited by the counsel for the petitioner, Bose, J., observed:
.... But we do feel that good grounds for transfer from Jashpurnagar are made out because of the bitterness of local communal feeling and the tenseness of the atmosphere there. Public confidence in the fairness of a trial held in such an atmosphere would be seriously undermined, particularly among reasonable Christians all over India not because the Judge was unfair or biased but because the machinery of justice is not geared to work in the midst of such conditions. The calm detached atmosphere of a fair and impartial judicial trial would be wanting, and even if justice were done it would not be "seen to be done". (para 5).
Nevertheless, we cannot view with unconcern the potentiality of a flare up and the challenge to a fair trial, in the sense of a satisfactory participation by the accused in the proceedings against her. Mob action may throw out of gear the wheels of the judicial process. Engineered fury may paralyse a party''s ability to present his case or participate in the trial. If the justice system grinds to a halt through physical maneuvers or sound and fury of the senseless populace the rule of law runs aground. Even the most hated human anathema has a right to be heard without the rage of ruffians or huff or toughs being tuned against him to unnerve him as party or witness or advocate. Physical violence to a party, actual or imminent, is reprehensible when he seeks justice before a tribunal. Manageable solutions must not sweep this Court off its feet into granting an easy transfer but uncontrollable or perilous deterioration will surely persuade us to shift the venue. It depends. The frequency of mobbing maneuvers in Court precincts is a bad omen for social justice in its wider connotation. We, therefore, think it necessary to make a few cautionary observations which will be sufficient, as we see at present, to protect the petitioner and ensure for her a fair trial. (para 7).
13. Bearing in mind the aforesaid principles laid down by the Hon''ble Apex Court since 1956 till the recent past, now let me proceed to examine whether a case for transfer has been made out or not.
14. The accused/petitioners have sought for transfer of their trial essentially on this background,
(a) Except the petitioner Nos. 6 and 7, that too for a brief period, the remaining accused persons never able to obtain the service of any lawyer in Court, from the day one of their arrest and production in Court.
(b) The Advocates of Barasat Bar have taken a resolution not to represent the accused''s and they staged protest march demanding punishment of the accused''s before they were actually found guilty in a regular trial.
(c) Although the accused/petitioners are capable to engage lawyer of their choice to defend them in the trial at their own expenses but because of the resolutions of the local Bar, neither any lawyer practising in the same Session Division is available nor the Advocates from the outside Courts are inclined to appear on their behalf.
(d) The atmosphere in and around the Court premises become heavily surcharged and tensed on each day the accused persons are produced in Court and that is not conducive of fair trial.
(e) There was not a single day when the accused was produced in Court, there was no commotion and pandemonium prevailed in and around the Court premises.
(f) On each day the accused''s were produced in Court an unruly mob used to surround the Court premises and shouting slogans against them demanding that they be handed over to the mob for instant justice and they at once be hanged.
In support of such allegations the accused persons have relied on several photographs of mob fury and News Paper reports annexed with this application.
15. On the other hand, from the side of the State without disputing such allegations, it was submitted that State has no objection if the trial is transferred and the State would take adequate measure for ensuring appearance of the witnesses during the trial at the State expenses and for their safety and security, adequate police arrangement will be made.
16. So far as the de facto complainant is concerned, no affidavit is filed against this application for transfer nor genuineness of the photographs annexed therewith and the News Paper reporting were challenged. It may be noted that the instant application was served upon counsel of the de facto complainant before hand and the matter was thereafter heard for two days consecutively on 23.7.2013 and 24.7.2013 but no prayer for filing affidavit was made. In this regard it is pertinent to mention when on 19.7.2013 in coarse of hearing of the first criminal revision, liberty was sought for from the side of the accused opposite party for filing an application for transfer, although no liberty was granted as because no such liberty is essential as it is the statutory right of any accused person, in a given circumstance, to move the Court for transfer of his trial but on that day this Court made it clear that any such application if filed, the party shall have the liberty to exchange their affidavits. However, the learned Counsel of the de facto complainant in his oral argument vehemently opposed the prayer for transfer. Firstly, on the ground that there was no allegation of judicial bias. Secondly, on the ground a large number of witnesses are from the localities situated in and around the Barasat Court and any change of venue will cause great hardship to them and already the associates of the accused persons started terrorizing the witnesses so that they may not depose in the trial against the accused persons and if the trial is transferred, not only the witnesses will be at great risk, they may be kidnapped and killed. This application was also opposed on the ground that already a lawyer from the panel of the District Legal Services Authority has accepted the brief and appeared on behalf of the accused persons and also filed an application retracting the confession by one of the accused thus it cannot be said the accused persons are not getting the service of any lawyer. This application was lastly opposed on the ground that a Public Interest Litigation, seeking further investigation is pending before a Division Bench of this Court. However, after the said Public Interest Litigation is disposed of, turning down the prayer for further investigation the said ground has become infructuous.
17. At this stage the report of the learned Sessions Judge, North 24-Parganas at Barasat assumes great importance for just decision in the matter. Going through the report and various documents submitted therewith, I find the existence of acute uproar, commotion resulting in a pandemonium outside the Court premises on each day, the accused''s were produced in Court has been clearly depicted. It is stated that untowardly incident was hardly avoided by deploying huge armed police and cordoning the Court premises at three stages. It further appears during pre-cognizance stage that is before submission of charge sheet Mr. Ruidas Pal, an Advocate from the Panel of District Legal Services Authority was appointed to defend the accused persons but he returned the brief under a covering letter addressed to the learned Sessions Judge, who is the ex-officio Chairman of the District Legal Services Authority stating that after his engagement, when he communicated the same to the officials of the District Bar Association and Indian Association of Lawyers, an organization of lawyer of which he is one of the member, he was asked and advised not to appear and defend the accused in Kamduni murder case, however, he is ready and willing to appear in all other matters. Similarly, after the case was committed to the Court of Sessions one Asit Nath, Advocate from the State Defence Panel was engaged, he also declined on personal ground. Report further said that thereafter one Swapan Sengupta was engaged from the panel of the District Legal Services Authority, and he however accepted the brief and appeared before the Sessions Court on behalf of the accused persons. It appears from the record of this case that Mr. Satyabrata Sen, a Senior Criminal Lawyer of Barasat Court, who is appearing on behalf of the de facto complainant in the said sessions case, happens to be the father of Mr. Swapan Sengupta. Although such relation has not much bearing but in the background facts of the case has some relevance. It further appears from the report, a group of villagers from Kamduni village and supporters of different organizations, even of some political parties used to gather in the Court precinct on each day, when the accused''s are produced in Court and they used to raise slogans against the accused persons demanding they at once be hanged. It was further reported to control this agitated and unruly mob and to maintain the law and order situation, huge police force were deployed and the Court premises were cordoned at three stages.
18. There is no gainsaying, that the accused persons never sought for transfer of the trial being apprehensive that a fair and impartial trial cannot be had in the particular Court where their case is now pending. No allegation of bias or partiality has been made against the learned Judge. However, the transfer has been demanded on the ground of absence of congenial atmosphere for fair and impartial trial due to the surcharged and tensed situation prevailing in the Court premises created by the rude and unruly mob and because the accused persons are not getting service from the legal practitioners of their choice. Therefore, the question of addressing the issue of transfer from the angle that the Court concerned is biased is not at all called for.
19. Now a days it has become very common and frequent phenomenal that whenever any allegation is made against a particular person accusing him for committing a crime, public agitation starts demanding exemplary punishment for the accused that too at the stage when the investigation is at its threshold. At the same time if the accused is an influential person having strong lobby behind him when the law enforcing agency takes action against him there is huge demonstration by the followers of such person demanding his release. It needs no mention that our Constitution enjoined freedom of speech and expressions and peaceful assembly as the fundamental rights of all citizens but one must not forget such right is not certainly at the cost of the fundamental right of an accused guaranteed under Article 21 and clause 1 of Article 22 of the Constitution. The fundamental rights guaranteed under Article 21 and clause 1 of Article 22 are more in nature than the right guaranteed under the Article 19. While the first referred fundamental rights are available to all and sundry irrespective of his citizenship, but the latter are restricted only to the citizen of this country.
20. The situation depicted from the report of the learned Sessions Judge, North 24-Parganas and from the newspaper reports and photographs annexed with this application for transfer and when correctness of those annexure viz., the photographs and newspaper reports are not denied, undoubtedly shows that a surcharged and tensed atmosphere is prevailing more particularly in the Court precinct not conducive for a fair and impartial trial not because the Court was unfair and biased but because machinery of justice is not geared to work in the midst of such condition. A calm detached atmosphere of a fair and impartial judicial trial is lacking. The next circumstance which certainly an impediment to a fair trial is the non-availability of the lawyer of their own choice to the accused''s due to the decision taken by the members of the local bar. I find both the lawyers, one engaged from the panel of District Legal Services Authority and another from State Defence Panel had declined to appear on behalf of the accused persons. The lawyer who is now representing the accused being engaged by the District Legal Services Authority is a junior member of the bar having practice for little above 10 years. It cannot be overlooked he is the only lawyer who agreed to defend the accused person is the son of the senior lawyer who is appearing on behalf of the de facto complainant. The record shows that regularly the de facto complainant is represented by his lawyers. Moreover, when the de facto complainant/victim has a statutory right to engage an Advocate of his choice to assist the prosecution as provided in proviso to sub-section 8 of section 24 of the Code of Criminal Procedure and when the Division Bench categorically directed while disposing of the public interest litigation in connection with the selfsame case, the trial Judge to permit the victim to engage an Advocate of their choice to assist the prosecution and observed it will be open to the victim not only to assist prosecution but also to point out the deficiency, there cannot be any question to deny such right to the accused persons when their such right is guaranteed in the Constitution as their fundamental rights. I am also satisfied that the accused persons are unable to have the services of the legal practitioners of their choice in the prevalent situation. I am sure when the State is directed to take all steps for taking witnesses from their native to the venue of trial, there will be no hardship to them in attending Court.
21. When a party approaches a Court for transfer of any criminal case on an apprehension that he will not get the justice for whatever reasons, he is not required to demonstrate that the justice will be inevitably failed. All that is necessary for him to highlight the circumstances which are the foundation of his such apprehension and it is for the Court to judge whether on the face of those alleged circumstances, it can be said the apprehension of such person is reasonable. It is not enough to make mere allegation that in a given case the party will not get the justice, in other words the entertainment of apprehension by the party is not sufficient unless it must appear to the Court to be a reasonable apprehension. The submissions and counter submissions of the parties and what transpires from the records are carefully and discreetly considered.
I am satisfied that a case for transfer has been made out and the apprehension of the accused persons is reasonable. Accordingly it is ordered and directed,
(a) The SC Case No. 2(7) of 2013 now pending before the learned Additional District and Sessions Judge, Fast Track, 3rd Court, Barasat, 24-Parganas North be transferred for trial to the Court of the learned Judge, Bench-II, City Sessions Court, Bichar Bhawan, Calcutta, a Bench presided over by a woman Judge.
The learned Judge in whose Court the case is now pending for trial at Barasat shall transmit the records of the aforesaid sessions case to the transferee Court within two days from the date of receipt of communication of this order. The learned District Judge, 24-Parganas North is directed to ensure compliance with my order.
(b) The transferee Court upon receipt of the case records shall at once ensure all charge-sheeted materials on which the prosecution is proposed to rely against the accused in the trial are supplied to them.
(c) On the next date fixed for trial i.e. on August 23, 2013, if it is found, the warrant issued against the absconding accused is not executed, then in that case the Court concern shall at once split up the case of the accused persons, who are in custody from the case of the absconding accused in accordance with law and shall proceed in terms of Section 299 Cr.P.C. Such process must be completed within a week.
If it is found that warrant has been duly executed against the absconding accused, the trial will be proceeded against him together with the other co-accused''s in accordance with law.
(d) The date for consideration of question of framing of charge must be fixed within seven days from the next date fixed for trial.
(e) After the stage of framing of charge is over, the recording of evidence must be commenced within 7 days thereafter and the same shall be proceeded strictly in terms of section 309 Cr.P.C. as have been already directed by the Division Bench while disposing of the Public Interest Litigation.
(f) As have been agreed by the learned Public Prosecutor it is directed that the State shall arrange for bringing the witnesses from their respective residences to the Court on the date fixed for their evidence, if the witnesses so desired they shall be brought in private vehicle under police escorts at the State expenses. All incidental expenses shall also be borne out by the State.
(g) State is directed to make necessary arrangements to ensure presence of the near relations of the victim in the Court on the trial dates under proper police escort and the entire cost shall be borne out by the State as have been agreed by the learned Public Prosecutor.
(h) The State shall also ensure and provide necessary police help for the safety and security of the witnesses as also to the victim and his relations.
(i) The accused persons must take steps to engage their lawyer of their own choice in the meanwhile and their lawyer must be present in Court, fully prepared for the trial on the next date fixed for appearance i.e. on August 23, 2013.
I make it clear no adjournment shall be granted on the ground the lawyer of the accused and unless Court is fully satisfied the grounds on which the adjournment is sought for is beyond the control of the parties.
(j) If any one of the accused by the next date fixed for hearing failed to engage lawyer of his choice to defend him in the trial, the Trial Court must engage a competent lawyer from the State Defence Panel or from the Panel maintained by the District Legal Services Authority and such lawyer must be an experienced one, having practice in criminal side not less than for 15 years.
(k) It is directed by the next date fixed for appearance of the accused in the Trial Court, i.e. by August 23, 2013 the State shall also appoint the prosecutor for the trial of this case.
Similarly, the de facto complainant shall be at liberty to engage a lawyer of his choice to assist the public prosecutor in the trial in terms of the provisions of section 24(8) Cr.P.C. In this regard the Trial Court must proceed in terms of the order passed by the Division Bench in connection with the public interest litigation.
(l) It goes without saying adequate police arrangement must be made at the Court premises to ensure no law and order problem is created.
The office is directed to at once communicate this order to the learned Additional District and Sessions Judge, Fast Track, 3rd Court, Barasat, 24-Parganas North, where the S.C.2(7) 13 is pending to transmit the records of the said case to the Court of the learned Judge, Bench-II, City Sessions Court, Bichar Bhawan, Calcutta. The copy of this order is also be sent to the learned Sessions Judge, 24-Parganas North so as to
ensure the records must be reached to the transferee Court positively by coming two days, if necessary, records be sent by special messenger The urgent xerox certified copy, if applied for, be given to the parties as expeditiously as possible on usual undertaking.
