Amit Talukdar, J. - (1.) For analogous Trial of Sessions Trial No. 1 of 1999 pending in the Court of the learned Additional Sessions Judge, Hooghly and Sessions Case No. 237 of 1999 pending in the Court of the learned Additional Sessions Judge, First Court, Hooghly, the petitioner has moved this Court under Section 407 of the Code of Criminal Procedure. It has been the submission of Shri Ashimesh Goswami appearing with Smt. Tapati Chatterjee and Smt. Minati Gomesh has submitted that the petitioner is the de facto complainant in Sessions Trial No. 1 of 1999 which arose out of Goghat Police Station Case No. 55 dated 23.7.93 under Sections 302, 120B of the Indian Penal Code plus Section 25 of the Arms Act. It is presently pending before the learned Additional Sessions Judge, Hooghly after framing of charge. Whilst, according to Shri Goswami, the petitioner and some others are arrayed in S. C. Case No. 237 of 1999 as an accused which in turn arose from Goghat Police Station Case No. 56 dated 23.7.93 under Sections 147, 148, 149, 302, 379 of the Indian Penal Code which is pending before the learned Additional Sessions Judge, 1st Court, Hooghly. He has submitted that both Sessions Trial No. 1 of 1999 and Sessions Case No. 237 of 1999 are case and counter-case respectively of an incident of 23.7.93. Shri Goswami has prayed for trial of both the cases one by one.
(2.) The learned Additional Public Prosecutor assisted by the learned Junior Government Advocate has pointed out that this petition has been given the nomenclature and "an application for transfer of a case under Section 407 of the Criminal Procedure Code, 1973" and it is merely a petition for transfer and as such without resorting to the proviso of sub-section (2) of Section 407 of the Code of Criminal Procedure this petition was not maintainable.
(3.) I have considered the submission of the parties and have gone through the materials-on-record. Although on principle I fully agree with the objection taken by the learned Additional Public Prosecutor with regard to non-compliance of first proviso of sub-section (2) of Section 407 of the Code of Criminal Procedure but I cannot subscribe to this view of the learned Additional Public Prosecutor since in effect Shri Goswami has prayed for trial of two cases which are case and counter-case of one another analogously. . This petition is not one such petition for transfer simpliciter as contemplated under the provisions of Section 407 of the said Code. For an error in the nomenclature of the petition and quoting of a wrong section should not be the sole ground for throwing aside the same if the pith and substance of a tenor of the petition otherwise discloses the correct prayer. Pebbles of technicalities cannot obstruct the flow of the fountain of Justice. The stream of the fountain is always forceful enough to make its way unhindered even by a rock of technicality.;