STATE OF WEST BENGAL Vs. GOPAL SHIL

JUDGEMENT

(1.) This is an application under Section 482 of the Code of Criminal Procedure assailing the order No. 11 dated 11.12.2003 passed by learned Sessions Judge, Burdwan in Criminal Misc. Case No. 1266 of 2003 in connection with Sessions Case No. 53 of 2001 arising out of Katwa P.S. Case No. 99 of 1996 under Section 448/376 I.P.C. transferring the case from the Court of learned Additional Sessions Judge, Katwa to the Court of learned Additional Sessions Judge, Fast Track Court, Katwa for disposal.

(2.) The application was filed before the learned Sessions Judge under Section 408 Cr.P.C. for the transfer of the said case alleging that after the framing of the charge five witnesses have already been examined and on 05.6.2003 the accused was absent due to his illness and prayed for time by filing a medical certificate which did not contain the signature of the accused. The learned Additional Sessions Judge rejected the prayer for time and issued warrant of arrest against the accused fixing 16.6.2003 for ER. The O.C. Katwa P.S. did not execute the warrant of arrest which caused annoyance of the learned Additional Sessions Judge. The petitioner surrendered before the learned Trial Judge on 16.7.2003 and produced the prescriptions to substantiate his explanation for his absence due to the compelling circumstances. But the learned Trial Judge decided to proceed with the trial by keeping the accused in judicial custody. The learned Trial Judge observed that the alleged medical certificate was got up one and rejected the prayer for bail on 31.7.2003. The learned Judge verbally expressed that the evidence so far collected will lead to the conviction of the petitioner for which he wanted to keep the petitioner in custody with a view to giving benefit under Section 428 Cr.P.C. It was alleged in the application under Section 408 Cr.P.C. that the learned Trial Judge pre-judged the case before the completion of Trial and it caused apprehension in the mind of the accused that he would not get proper justice and fair trial if the trial was concluded before the said learned Trial Court.

(3.) The learned Sessions Judge upon hearing both sides and relying upon a Full Bench decision of Allahabad High Court was of the view that the Sessions Judge was competent to transfer the case under Section 408 if it was expedient in the interest of justice to do so. The learned Trial Judge observed that the application was filed under Section 408 and not under Section 409 Cr.P.C.