- (1.) This petition is the fourth episode of a seemingly unending saga. The petitioner's wife applied under Section 156 (3) of the Criminal Procedure Code, 1973 (the Code) alleging that the petitioner had committed rape on her. After commitment the matter was set down for trial in the Court of the Additional Sessions Judge, Diamond Harbour. The petitioner applied under Section 407 read with Section 482 of the Code before this Court. The proceedings were not quashed in exercise of powers under Section 482 of the Code but the matter was transferred to the Court of Additional District and Sessions Judge, Fast Track Court at Baruipur. Such order came to be made on the petitioner claiming that it would be inconvenient for him to attend the distant Diamond Harbour Court and on the basis of his apprehension for his security in Diamond Harbour. By the order of transfer of February 13, 2007, this Court required the recording of evidence to be taken up on March 17, 2007.
(2.) On April 2, 2007, the petitioner applied, again under Section 407 read with Section 482 of the Code, alleging misconduct on the part of the Presiding Officer at the time that the matter was taken up on March 17, 2007. The petitioner complained of the manner in which evidence was received by the trial Court and of the petitioner's application under Section 231 of the Code, for deferring the cross-examination of his wife, not being considered. The petitioner referred to acrimonious exchanges in Court on March 17, 2007 and March 19, 2007 and expressed lack of confidence in the Presiding Officer and his apprehension that he would be denied a fair trial. The petitioner claimed that the petitioner was directed by the Presiding Officer to be sent to the Court lockup on March 19, 2007 and in the process was assaulted. On such grounds the petitioner sought transfer of the case from the Baruipur Court. That application, C.R.R. No. 1254 of 2007, was disposed of by an order of April 9, 2007 refusing to transfer the case but requiring the trial Court to dispose of the petitioner's application under Section 231 of the Code. In rejecting the petitioner's plea for transfer, it was held in such order, inter alia, as follows : - "When an allegation is made against a Court as to the Court being unfair or not being impartial, fullest particulars must be disclosed. There is an underlying suggestion that the petitioner, being a lawyer was entitled to better courtesy than an ordinary accused and that the petitioner was entitled to be exempted from the ordinary humiliation that an accused suffers. There is no reason to accord such exhaled status to an accused by reason of his calling. There is nothing that our criminal law recognises, at least as to the conduct of trial, to be based on the status of the accused. Undoubtedly, the High Court has discretion in the matter but such discretion, particularly when the complaint is of unfair trial, has to be based on cogent grounds with fullest particulars. It is also of some significance that this is the second, in what may be a series of attempts, to seek transfer. The proceedings had originally been transferred from the Diamond Harbour Court to the Baruipur Court. "...on the face of the allegations contained in the petition, no case of transfer has been made out which could require either the State or the opposite party to proffer any explanation. It is, however, necessary to observe that if an application under Section 231 of the Code has been made or is made by the petitioner, the learned Trial Judge should take up the same and deal with the same on merits. This is not to be construed as a charter given to the petitioner to make as many applications that the petitioner may choose so that the trial can be deferred. This liberty is limited to the application under Section 231 of the Code, a copy whereof has been annexed to the petition. As to the subsequent conduct of the proceedings, the learned Trial Judge will be free to exercise his discretion and best judgment in the matter. "The petition is, thus, disposed of with the observations as above. The learned Trial Judge is encouraged to conclude the proceedings as expeditiously as possible."
(3.) A further application was made by the petitioner on April 11, 2007, again under Sections 407 and 482 of the Code, repeating the allegations against the trial Judge which formed part of the petition that was disposed of by the order of April 9, 2007. To emphasis the charges levelled against the trial Judge, he was impleaded as opposite party No. 1. That further application being C.R.R. No. 1432 of 2007 was dismissed on April 19, 2007 on the following lines : - "The name of the opposite party No. 1 is deleted accordingly from the array of the opposite parties. This is the third in the sequel of attempts by the petitioner to have the proceedings transferred. On the last application under Section 407 of the Code of Criminal Procedure, 1973, a direction had been issued requiring the learned Court below to take up the petitioner's application under Section 231 of the Code and to dispose of the same. It does not appear from the averments made in this petition that a copy of the order passed on the last application (C.R.R. No. 1254 of 2007) was placed before the learned Court below. In fact the plain copy of the order that the petitioner was permitted to obtain was obtained subsequent to the making of this application. This application is, therefore, not entertained despite copies thereof having been required to be served on the de-facto complainant and the State. The petitioner will produce the order passed on the last application under Section 407 being C.R.R. No. 1254 of 2007 and also make over a copy of this order to the learned Court below. As required by the earlier order, the learned Court below would do best to conclude the trial as expeditiously as possible. Learned Counsel appearing for the de-facto complainant submits that in respect of matters covered by this petition, a writ petition has been instituted and a copy thereof has been served on some of the respondents therein. It is undesirable that a litigant indulges in such multifariousness. This petition is dismissed. The order of dismissal should not be construed as a pronouncement on the grounds urged in the petition for transfer. This will also not preclude the petitioner from applying again for transfer if the grounds therefor are made.";