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Punyananda Avadhut Vs. State and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Misc. Case No. 501 of 1969
Judge
Reported inAIR1970Cal241,1970CriLJ806
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 270, 526, 526(1) and 526(3)
AppellantPunyananda Avadhut
RespondentState and ors.
Appellant AdvocateN.C. Banerjee and ;Arun Kumar Mukherjee, Advs.
Respondent AdvocateKishore Mukherjee, Adv. for Opposite Parties Nos. 2 to 33 and ;S.N. Banerjee, D.L.R.
Cases ReferredJag Bhushan Jain v. State
Excerpt:
- .....the question for consideration, therefore.arises if the petitioner can be said to be a 'party interested' within the meaning of sub-section (3) of section 526 of the code. sub-section (3) reads as follows:--'a high court may act either on the report of the lower court, or on the application of a party interested, or on its own initiative.'mr. mukherjee submits that the words 'party interested' do mean and include only the state and the accused persons, the person on whose information the police took cognizance is not a 'party interested', because at the trial he is not interested as it is a state prosecution. it is difficult to accept this interpretation of the words 'party interested'. the word 'party' is not defined in the code. the dictionary meaning is 'each of the two or.....
Judgment:

R.N. Dutt, J.

1. On some first information report lodged by the petitioner, the police made an investigation and thereafter submitted a charge-sheet against the opposite parties Nos. 2 to 33. There was an enquiry under Chapter XVIII of the Code of Criminal Procedure and the said opposite parties were committed to the Court of Session at Purulia under Sections 120-B, 147, 148, 149, 302 and 436 of the Indian Penal Code. The case is now pending trial before the Sessions Judge, Purulia.

2. The petitioner has obtained this Rule with a view to get the case transferred from the Sessions Court at Purulia to some other Sessions Court for trial. The State has entered appearance and Mr. Banerjee, the learned Deputy Legal Remembrancer, informs us that the State neither supports nor opposes the Rule. Mr. Mukherjee appears for the opposite parties Nos. 2 to 33 and opposes this Rule.

3. Mr. Mukherjee at the outset takes two preliminary objections. He submits that the petitioner makes no aspersion or allegation against the Sessions Judge and so, there is no scope for transfer of the case from his Court under Section 526(1)(a) of the Code. We find that the petitioner's application bears a heading 'an application under Section 526(1)(a) of the Code of Criminal Procedure.' Mr. Banerjee, who appears for the petitioner, concedes that the application is not really an application under Section 526(1)(a) of the Code but is an application under Section 526(1)(e) of the Code and the heading contains an unfortunate mistake. It is true that there is no aspersion or allegation against the Sessions Judge, Purulia, before whom the case is now pending for trial and so, the case does not really fall under Clause (a) of Section 526(1) of the Code. Since the matter is now before us, we will have to consider if it does fall under Clause (e) of Section 526(1) of the Code and if it does, we do not think that we are incompetent to make an appropriate order for transfer only because the heading of the application makes it an application under Clause (a) of Section 526 (1) of the Code. This objection raised by Mr. Mukherjee does not, therefore, lead us to discharge the Rule on that ground.

4. Mr. Mukherjee's other preliminary objection is that the petitioner has no locus standi to make an application for transfer under Section 526 of the Code in the instant case. The case is being conducted by the State. But the police took cognizance of the case on some first information report lodged by the petitioner. The question for consideration, therefore.arises if the petitioner can be said to be a 'party interested' within the meaning of Sub-section (3) of Section 526 of the Code. Sub-section (3) reads as follows:--

'A High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative.'

Mr. Mukherjee submits that the words 'party interested' do mean and include only the State and the accused persons, the person on whose information the police took cognizance is not a 'party interested', because at the trial he is not interested as it is a State prosecution. It is difficult to accept this interpretation of the words 'party interested'. The word 'party' is not defined in the Code. The dictionary meaning is 'each of the two or more persons making two sides in legal action'. But then, in Sub-section (3) the word 'party' is qualified by the word 'interested'. The person at whose instance the prosecution was started is certainly interested in the case and the 'party interested' should also include such a person, Mr. Mukherjee refers to the unreported decision of a Division Bench of this Court in Criminal Misc. Case No. 86 of 1946 (Cal), Bihari Lal Mondal v. Brindaban Pramanik, where this Court said that when a prosecution is founded on a complaint of a Court under Section 476 of the Code of Criminal Procedure, a person moving the court to take the action cannot be considered to be a 'party interested' within the meaning of Sub-section (3) of Section 526 of the Code. He also refers to the decision of the Lahore High Court in Ram Sarup v. Mohammad Mehr Dil Khan, 31 Cr LJ 1174= (AIR 1930 Lah 873), which also says the same thing. But then, these cases are not on all fours with the present case. Here, the petitioner is not such a person; but he is a person on whose first information report the instant prosecution was started and so, those decisions are not attracted to the facts of this case. Mr. Mukherjee thereafter refers to the decision of the Patna High Court in Jamuna Kanth Jha v. Rudra Kumar Jha, 20 Cr LJ 648--(AIR 1920 Pat 886) and the decision of the Allahabad High Court in Sri Krishna v. Baijnath, : AIR1953All698 , and submits that both the Patna and the Allahabad High Courts have held that a person, who lodges the first information report is not a 'party interested' within the meaning of Section 526(3) of the Code. Not only these cases but there are some other cases of some other High Courts also which have taken this view. But then, the contrary view has been taken in various other cases by the different High Courts. We will refer to the decision of the Assam High Court, in N. C. Bose V. Probodh Dutta Gupta, AIR 1955 Assam 116, where the Assam High Court hasconsidered not only the cases referred to by Mr. Mukherjee but various other cases and finally came to the conclusion that a person on whose information a prosecution is started is a 'party interested' within the meaning of Section 526(3) of the Code, The Allahabad High Court in a Division Bench decision in 1962 has also found this. This we find in the decision in Jag Bhushan Jain v. State, : AIR1962All288 . The question whether a person, who lodges a first information report, is a 'party interested' within the meaning of Section 526(3) of the Code in a case prosecuted by the State was referred to a Division Bench and the Division Bench on a consideration of all the relevant decisions on this point came to the conclusion that such a person is a 'party Interested'. With respect we agree with the reasonings and the findings of the Assam and the Allahabad cases reported in the aforesaid decisions. Furthermore, this point is more or less academic in this case because, as we have quoted Sub-section (3) of Section 526 of the Code, it will be clear that the High Court can make an order for transfer even on its own initiative. Even if it be held that the petitioner is not a 'party interested' within the meaning of Section 526(3) of the Code, now that the matter is before us and if we think that this is a case which should be transferred from the district of Purulia, we can do that on our own initiative. The fact that the matter was brought to our notice by the petitioner, will not bar or prevent us from exercising that jurisdiction and so, even if we hold that the petitioner was not competent to make the instant application under Section 526 of the Code, there is no bar to our making an order for transfer if we are otherwise satisfied that the facts and circumstances of the case justify such a transfer. We will, therefore, consider the matter on merits now.

5. We find that the enquiry before the committing Magistrate at Purulia was conducted by the Public Prosecutor of Bankura who was appointed by the State Government to conduct this prosecution at Purulia. We find, however, that after the commitment was made the Public Prosecutor, Bankura, is no longer available for conducting the prosecution before the Sessions Judge and Mr. Banerjee, the learned Deputy Legal Remembrancer, informs us that the State has engaged one Assistant Public Prosecutor from Asansol to conduct the case before the Sessions Judge, Purulia. It thus appears that no Public Prosecutor will be available at Purulia for conducting this prosecution. Furthermore, we find that one of the accused persons, who was the local Block Development Officer at the time of the Incident and against whom serious allegations have been made.

Is now a Sub-Deputy Collector posted at Purulia, Sadar. True, the case is to be heard by the Sessions Judge with whom the said accused person has nothing to do. But the prosecution witnesses will be the people of the locality where the accused was the Block Development Officer at the relevant time and he is still an officer at Purulia where the trial is to be held. We feel that it would be expedient for the ends of justice that the trial should be held elsewhere than at Purulia. Mr. Mukherjee no doubt tells us that the accused persons will be much prejudiced for view of the fact that they have engaged their lawyers who have been paid their fees. That is certainly of some consideration. But then, for the other reasons which we have said, we feel that even if that means some inconvenience to the accused persons the trial should be held elsewhere. We hold, therefore, that it is expedient for the ends of justice that this case should be transferred for trial from the district of Purulia.

6. In the result, the Rule is made absolute. Let the instant sessions case be transferred from the district of Purulia to the district of Midnapore to be tried by the Sessions Judge at Midnapore as expeditiously as possible.

7. Let the records be sent down at once.

Ajay K. Basu, J.

8. I agree.


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