Shib Sadhan Sadhu, J. - (1.) SINCE both these applications under Section 407 read with Section 482 of the Code of Criminal Procedure, 1973 have arisen out of similar facts seeking transfer of the Sessions Case No. 10(8) 2014 arising out of Jhargram P.S. Case No. 70 of 2014 under Sections 365/367/368 of the Indian Penal Code now pending in the Court of the Learned Additional Sessions Judge, First Court, Jhargram, District: West Midnapore to any other Court of equal or superior jurisdiction outside the district of West Midnapore, they are being decided by this common judgment and order, for the sake of brevity.
(2.) THE aforesaid Sessions case arises out of F.I.R. No. 70 of 2014 of Jhargram Police Station on the basis of a written complaint filed by the de -facto complainant Paban Kumar Agarwal alleging that on 25.04.2014, his only son Saurav Agarwal left home at Balaramdihi for business work but no information was received about him till 7.30 p.m. Thereafter, the complainant began to search for his son but could not find him. Then he lodged a missing diary on 25.04.2014 in Jhargram P.S. being Jhargram P.S. G.D. Entry No. 1656 dated 25.04.2014. Later on he came to know that his son Saurav was kidnapped by some miscreants on 25.04.2014 from Jhargram town and he apprehended that his son might be in danger. Accordingly, police took up investigation and the dead body of the kidnapped son Saurav was recovered from Ganjam, Orissa. Thereafter, on completion of investigation police submitted charge sheet being No. 192 of 2014 dated 26th July, 2014 against five accused persons including the present two petitioners under Sections 364/364A/302/201/120B/379/411 of the IPC and under Sections 25(1 -B)(a)/35 Arms Act. That case was committed to the Court of the Learned Additional Sessions Judge, First Court, Jhargram, who framed charge on 12.11.2014 and the case is pending for evidence of witnesses. The facts of the case leading to the Transfer Petitions are as follows: - i) That no Advocate could appear on behalf of the petitioners from the date of their arrest till the filing of the charge sheet. The local Bar Association resolved that they would not defend the accused persons and so the accused remained undefended. Even they were not given legal aid from the District Legal Services Authority to move bail application till the submission of charge sheet. The case received wide publicity in the media and some newspapers. The relatives of the petitioners due to prevailing situation outside the Court room of the Additional Chief Judicial Magistrate, Jhargram advised the present advocate on record of the petitioners against defending her keeping in mind the safety of the said Advocate on record. ii) The petitioners could not obtain the certified copy of the orders passed by the Learned ACJM, Jhargram for moving application under Section 439 Cr.P.C. iii) There was a gathering of slogan shouting mob outside the Court room on each date of production of the accused persons and they demanded exemplary punishment of the accused persons and that the accused persons be handed over to them for providing instant justice to them. There was imminent danger that the accused persons might be lynched by mob. iv) The house of the petitioner was fully ransacked by the mob and the household articles were looted. The relatives of the petitioner were so frightened that they could not even go to the local police station to lodge complaint. One of her relation Dwarka Prasad Sharma came from Korba, Chhattisgarh and had been to Jhargram Correctional Home on 15th November, 2014 to meet the husband of the petitioner but he was threatened by unknown person. So he returned to Korba and sent a letter on 02.11.2014 by post to the O.C., Jhargram P.S. and to the Superintendent of Police, West Midnapore informing them about the aforesaid incident. So there is ground for reasonable apprehension that the accused persons would never receive a free and fair trial before that Court. v) The petitioner in C.R.R. No. 3706 of 2014 namely Purnima Sharma @ Punam Sharma is lodged in Alipore Womens' Correctional Home as there is no such Home at Jhargram and she is to undertake an audacious journey of more than 200 kilometers on each and every date of production before the Trial Court. She has been suffering from a rare medical disease namely "Myasthenia gravis" which is an either autoimmune or congenital neuromuscular disease that leads to fluctuating muscle weakness and fatigue. The hallmark of "Myasthenia gravis" is fatigability. Muscles become progressively weaker during periods of activities and improved after periods of rest. In such crisis, a paralysis of the respiratory muscles occurs, necessitating assisted ventilation to sustain life. In patients whose respiratory muscles are already weak, crises may be triggered by infection, fever, an adverse reaction to medication, or emotional stress. In such circumstances, it is impossible for the petitioner to undertake the said journey. Both the medical and emotional stress are taking a serious toll on the petitioner and that might ultimately lead to the death of the petitioner. vi) After commitment of the case, two Advocates i.e. Mr. Santanu Ghosh and Mr. Himel Chetri agreed to defend the petitioner. But they are not of the expected standard to defend the petitioner in such a complicated trial where the maximum punishment is death penalty. The son of the petitioner met with famous Counsel Mr. Sanatan Mukherjee, who after hearing the entire fact situation and circumstances prevailing there expressed his inability to defend the petitioner and so they are not able to be defended by any Advocate of their choice. vii) The father of the victim is a renowned businessman of Jhargram area and is a very powerful man. The victim was a very popular person and thus an untoward sympathy as well as anguish is there since inception of the case.
(3.) MR . Rana Mukherjee, Learned Counsel appearing for the petitioner in C.R.R. No. 3706 of 2014 and Learned Counsel Mr. Soumyajit Das Maha Patra appearing for the petitioner in C.R.R. No. 375 of 2015 have submitted the following grounds for transfer of the proceedings: - i) That there is a surcharged environment and there is no conducive atmosphere for free and fair trial. ii) That the petitioners and other accused persons are not getting the service of legal counsel of their choice to defend themselves. iii) That the petitioner Punam Sharma is extremely ill and the hostile situation outside the Court room is further telling upon her health. iv) The machinery of justice is not geared to work in the midst of such hostile condition, which demonstrate want of calm and quiet atmosphere of a fair and impartial trial. v) That free and fair trial is sine qua non of Article 21 of the Constitution of India. It is trite law that justice should not only be done but it should be seen to have been done. vi) Since the accused persons cannot secure service of an Advocate of their choice to defend themselves it tantamounts to an infringement of their fundamental right guaranteed under Article 22(1) of the Constitution of India. They concludingly submitted that on the backdrop of the surcharged and tensed situation prevailing outside the Court room at Jhargram, the atmosphere for holding a free, fair and impartial trial is wanting and therefore this Court's intervention under Section 407 Cr.P.C. is absolutely necessary to transfer the aforesaid Sessions Case to any other Sessions Court of concurrent/Superior jurisdiction outside the District of West Midnapore.;