- (1.) Invoking Section 407 of the Code of Criminal Procedure the petitioners who have been facing their trial before the Learned Additional District & Sessions Judge, Fast Track Court, Amta, Howrah of a charge under Sections 498A/304B/34 of the Indian Penal Code have moved this Court for transfer of their trial to any other Court on the ground the Learned Presiding Judge is biased against the accused/petitioners and as such there cannot have any fair and impartial trial.
(2.) In support of this application it has been contended by the Learned Advocate of the petitioners; (a) The Court put some questions to the Investigating Officer of the case as to whether the P.W. 3 and P.W. 6 made any statement to him for further demand of dowry by the accused persons although no such allegation was made by the said witnesses in their evidence. (b) The Court made attempt to bring into records inadmissible evidence, namely, what have been allegedly stated by the witnesses to the police. (c) The Court asked a question to the P.W. 3 which practically changed the complexion of his evidence. The witness was asked by the Court, how the death of Barnali Ghosh took place and when the witness replied she was murdered, the Court again asked why she was murdered and the witness reply for demand of further dowry. (d) The post mortem doctor P.W. 13 practically demolished the prosecution case. According to him the death of the victim Barnali was natural but the Learned Court tried to bring in evidence by putting some questions to P.W. 18, the doctor who held the inquest to make out a case that the death was unnatural. Some hyper-technical questions were put to the witnesses. (e) A question was put to the P.W. 18 as to what kind of drug would be administered in a case where a patient suffered heart and cerebral problems although the doctor, who treated the patient at Hospital was still to be examined. (f) The examination of the accused persons under Section 313 of the Code were not in accordance with law and the questions were too lengthy and confusing and they were also not permitted to explain away the materials actually appearing against them. The reliance has been placed on the following decisions on behalf of the petitioners, viz., (i) Rajinder Singh @ Manu and Anr. v. State of West Bengal, 2004 CrLJ 4023, (ii) Satish Jaggi v. State of Chhattisgarh and Ors.,2007 2 ECR 1, (iii) Ratan Das v. The State of West Bengal and Ors.,2008 2 CrLR 597. On behalf of the State this prayer for transfer was vehemently opposed and it was contended; (a) According to the Evidence Act the Learned Trial Court has been amply empowered to put any question to a witness and parties have no right to put objection as to the same. (b) The question put to the witnesses were aimed towards the discovery of the relevant facts in the case and to obtain proper proof. (c) The question put to the P.W. 3 by the Learned Trial Court is clearly not an irrelevant question but reflects the intention of the Trial Court to discover the relevant facts, i.e. how Barnali Ghosh died. (d) The question put to P.W. 18 is not irrelevant. In the said question the Trial Court extracted a portion from Modis Medical jurisprudence and toxicology and asked the opinion of P.W. 18 as regards to the probable cause of death of Barnali Ghosh. (e) Although, it is alleged that the Trial Court demonstrate its biasness on and from April 2, 2009 when a question was put to P.W. 3 and thereafter two other witnesses on other dates, but at the fag end of the trial when the examination of accused under Section 313 of the Code was over they have approached the High Court for transfer of the case and as such the prayer for transfer at such belated stage is clearly motivated and aimed to delay the conclusion of the trial. (f) Mere apprehension of a party is not sufficient for causing transfer of a trial unless such apprehension is reasonable. In this regard on behalf of the State reliance has been placed in the decision of the Honble Supreme Court in the case of Zahira Habibulla H. Sheikh and Anr. v. State of Gujarat and Ors., 2004 SCC(Cri) 999. It has been submitted on behalf of the opposite party No. 2, the defacto-complainant that it is the duty of the Trial Court to find out the truth and in doing so the Court is very much empowered to put questions to the witnesses to arrive at a just decision. According to the provisions of Section 165 of the Evidence Act, the Trial Court has ample power to put both relevant and irrelevant questions and on fanciful ground no trial can be transferred unless the same has some real basis. On behalf of the opposite party No. 2 the reliance have been placed on the following two decisions, viz., (i) State of Rajasthan v. Ani @ Hanif and Ors., 1997 AIR(SC) 1023, (ii) Mrs. Maneka Sanjay Gandhi and Ors. v. Miss Rani Jethmalani, 1979 AIR(SC) 468.
(3.) I have given my anxious and thoughtful consideration to the rival submissions of the parties as well as to the case laws cited by them. Perused the materials on record.;