ABARNA MUKHOPADHYAY Vs. DIPTIMAN MUKHOPADHYAY

JUDGEMENT

(1.) This revisional application under section 407 of the Code of Criminal Procedure (hereinafter called the Code) has been preferred by the petitioner praying for transfer of G.R. Case No. 226 of 1997 from the Court of the learned Judicial Magistrate, Kalyani to the Court of competent jurisdiction within the sessions division of Hooghly.

(2.) Learned Advocate for the petitioner contended that the opposite parties were arrayed as accused persons in Kalyani P.S. Case No. 68 dated 3.6.97 under section 498A/34 of the Indian Penal Code (hereinafter called the IPC) on the basis of complaint lodged by mother of the petitioner. Petitioner is the wife of opposite party No. 1 and opposite parties inflicted serious physical and mental torture on her. The petitioner and opposite party No. 1 both are engaged in legal profession. The opposite party No.2 was a member of the West Bengal Higher Judicial Service and is a very influential person. After investigation police has submitted chargesheet and the said case being G.R. Case No. 226 of 1997 is now pending in the Court of the learned Judicial Magistrate, Kalyani. Charge under section 498A/34 of the IPC has also been framed against the opposite parties.

(3.) He further contended that the opposite party No. 2 was also a District Judge during his career and has influence both in the local Bar as well as the Bench. An application under section 242(3) of the Code was preferred by the accused persons for examination-in-chief of four witnesses on the same day or on consecutive dates and to defer their cross-examination till other remaining witnesses are examined-in-chief. The learned Judicial Magistrate by order dated 28.8.03 allowed the said application and the learned Assistant Public Prosecutor remained a silent spectator. Deferring of cross-examination of any witness is a discretionary power of the learned Court and the accused has no right to ask for wholesale deferring of cross-examination of witnesses. The petitioner is not getting any assistance from the local Bar. For fair and impartial trial the records of the aforesaid case should be transferred to any other Court of learned Judicial Magistrate either in the District of Nadia or in the District of Hooghly and if the case is not transferred the petitioner will suffer irreparable loss and injury. It is the duty of the Assistant Public Prosecutor in charge of the case to examine the witnesses according to the choice of prosecution and defence has no say regarding manner of examination of witnesses. In the instant case, on the contrary, the learned Court fixed a programme for examination of witnesses on the basis of application filed by defence. It indicates that the learned Judge is to some extent bias and the petitioner will not get fair trial in the said Court.