Tanusree Sarkar vs State Of Tripura And Ors

The petitioner has prayed for the following reliefs:

"(i) Admit this petition of the petitioner;

(ii) Call for records;

(iii) Issue notice upon the Respondents;

A N D

(iv) After hearing transfer the said Criminal case being PRC(WP) No.33/2019 from the Court of Judicial Magistrate, 1st Class, Court No.2, Belonia, South Tripura to any other Court of same jurisdiction in Agartala forthwith and in to time;

(v) Till disposal of the instant transfer petition, the said Criminal case being PRC(WP) No. 33/2019 of the Court of Judicial Magistrate, 1st Class, Court No.2, Belonia, South Tripura be remain stayed.

(vi) Pass such further order or orders, direction of directions as the Hon'ble Court may deem fit and proper having regards to the circumstances of the case.

Opposing the petition, Mr. Sankar Lodh, learned counsel for the respondents No.2 and 3 refers to and relies upon the decision rendered by the Apex Court in Milap Choraria Vrs. Sanjay Kumar Jhunjhunwala and others; (2017) 13 SCC 609 (2 Judge Bench).

Facts are short and simple. Petitioner, who is working as a graduate teacher at Belonia, seeks transfer of Criminal Case No. PRC(WP) 33/2019 from the Court of Judicial Magistrate, 1st Cass, Court No.2, Belonia, South Tripura to the Court having competent jurisdiction at Agartala. And the grounds of transfer being (a) petitioner is receiving threats from her husband, accused No.1 namely, Sri Abhisubhra Paul, a practicing advocate at Belonia, (b) accused No.2 namely Smti Laxmi Biswas is gainfully employed in the very same Court, (c) it is more convenient for all the parties to appear at Agartala and have the matter adjudicated without any threat, fear or apprehension of miscarriage of justice.

Having heard learned counsel for the parties as also perused the record so produced, this Court is inclined to favourably consider the petitioner's request for transfer.

It is true that save and except for one isolated incident of threat meted by accused Nos.1 and 2 who are respondents No. 2 and 3 herein, there are no other instances of threat as narrated in the FIR, but then it is equally true that the petitioner's apprehension of her inability to pursue her case without fear or apprehension is not unfounded. Both the respondents have easy access to the system of administration of justice.

The Apex Court in Sarasamma alias Saraswathiyamma Vrs. State represented by Deputy Superintendent of Police and others; (2018) 7 SCC 339 has clarified that each case has to be considered on its own prevalent facts and circumstances and in any case, the Court in the said decision has not laid down any law that under no circumstances transfer of a petition/case cannot be allowed. In fact, this Court in TRP(Crl.) No.4 of 2019 (Mst. Lipi Begam Vrs. The state of Tripura and others) under very similar circumstances, has elaborately dealt with the issue in the following terms:

"[7] It is seen that any which way, the fact of the matter being, that as on date, petitioner is forced to reside with her parents at Dharmanagar. She has no independent source of income and is fully dependent upon them for sustenance and livelihood. In the FIR itself, the complainant had narrated various acts on the part of her husband in exerting pressure on account of the position which he was holding, which fact, the investigator has not found to be untrue.

[8] Appreciably, Ms. R. Majumder, learned counsel for the petitioner invites attention of this Court to the recent decision rendered by Hon'ble the Apex Court in Sarasamma alias Saraswathiyamma versus State represented by Deputy Superintendent of Police & others reported in (2018) 7 SCC 339 wherein under similar circumstances, the Court while exercising jurisdiction under the provisions of Code of Criminal Procedure observed as under:

"24. As justice should not only be done, but also seem to have been done, it would be necessary that the trial should take place in a fair and transparent manner, wherein there should be no element of bias or witness tampering. As the appellant has clearly made out a case for transfer, we are inclined to accept the prayer sought by the appellant in this case. Accordingly, the case being SC No.1 of 2013 pending before the Additional Sessions Court, Hosur is directed to be transferred to the Principal Sessions Court at Salem, Tamil Nadu. Further the trial court is directed to conduct the trial is an expeditious manner and uninfluenced by any observations made therein."

[9] The power exercised by the High Court under Section 407 of Cr.P.C., undoubtedly has to be so done sparingly. The Court must be convinced that it is not possible to conduct a fair and impartial trial, and it would be expedient for meeting the ends of justice, the Court, within its jurisdiction, may order transfer of a case from one Court to another.

[10] It is a settled principle of law that no universal or hard and fast rules can be prescribed for deciding a transfer petition which undoubtedly has to be decided on the merits of each case. The sine qua non being the apprehension of not getting a fair and impartial trial. Needless to add, such apprehension or fear need not be imaginary. Additionally, convenience of the party is also a factor to be kept in mind while deciding such an application of transfer.

[11] Now in the instant case, it is not in dispute that the respondent-husband is in police force. At this point in time, he is facing disciplinary proceedings and is under suspension. His last posting was within the jurisdiction of Court at Unakoti Judicial District. The Head quarters during the disciplinary proceedings are also fixed at Kailashahar, Unakoti Judicial District.

[12] Cumulatively assessed, this Court is convinced and satisfied that the apprehensions of the petitioner are well founded.

[13] As such, as the interest of justice so warrants, Criminal case being PRC(WP) No.23/2019 pending in the Court of Judicial Magistrate 1st Class, Kailashahar, Unakoti Judicial District, titled as The State of Tripura Vs. Md. Abdul Mahim and others stands transferred to the Court having competent jurisdiction at Dharmanagar, North Tripura.

[14] Parties undertake to appear before the concerned court on 16th August, 2019, by which date the concerned District Judge would have allocated the matter on the administrative side.

[15] There is one disturbing feature which has come to the notice of the Court, and that being the manner in which record and that too, computerized is being maintained by the Investigating Officer at the concerned police station as also the concerned Sub-Divisional Magistrate, who was dealing with the P/R report No. G.D.E. 002/004 dated 08-08-2018/G.D.E No.013/014 dated 13-09-2018.

[16] Learned counsel for the petitioner has placed on record certified copy of the same issued by the Sub-Divisional Magistrate, Kailashahar, Unakoti Tripura indicating the G.D.E number to be 013/014 dated 13-09-2018. Incidentally, on this document there is cutting by hand and the original print out indicating the G.D.E No.002/004 dated 08-08-2018 has been scored off and corrected by hand to read as G.D.E. No.013/014 dated 13-09-2018.

[17] Noticing the same, the Court asked Smt. Aparna Debnath, Officer-in-charge, Kailashahar Women Police Station to produce the record. Such record produce by her reveals that there is no cutting in the original record and the G.D.E number is dated 08-08-2018 only. Obviously, there is mistake which the learned Public prosecutor clarifies is bona fide, perhaps on account of wrong feeding of the number of G.D.E and date. Anyhow the record at all places must indicate the correct number and date. The District Magistrate/Superintendent of Police, Kailashahar, Unakoti Tripura shall ensure that record at all places is corrected appropriately."

The principles apply, with equal force to the instant facts.

This court cannot be unmindful of the fact that the instant petition stands filed through the High Court Legal Services Committee.

Under these circumstances, for all the aforesaid reasons, Criminal Case No. PRC(WP) 33/2019 titled as The State of Tripura Vrs. Sri Abhisubhra Paul and another stands transferred from the Court of Judicial Magistrate, 1st Cass, Court No.2, Belonia, South Tripura to the Court of learned Chief Judicial Magistrate, Agartala, West Tripura. The parties are directed to appear before the Ld. Chief Judial Magistrate, Agartala, West Tripura on 04.12.2019 who shall take further appropriate action.

The petition is disposed of. Pending application(s), if any, also stands disposed of. Record be sent back immediately.