IN THE HIGH COURT AT CALCUTTA

CIRCUIT BENCH AT JALPAIGURI

CRIMINAL REVISIONAL JURISDITION

APPELLATE SIDE

PRESENT:

THE HON’BLE JUSTICE UDAY KUMAR

CRR 353 of 2023

Itu Ranu Ghosh and Ors..

-Vs.-

The State of West Bengal and Ors.

For the

De Facto Complainant : Mr. Subhasish Misra

Mr. Satyajit Paul

Mr. Shreya Sarkar

For the Opposite Party : Mr. Aniruddha Biswas

Mr. Kanak Misra

Mr. Monaj Saha

For the State : Mr. Aditi Shankar Chakraborty, Ld. APP

Mr. Sourav Ganguly

Hearing concluded on : 23.07.2025

Judgment on : 28.07.2025

Uday Kumar, J.:-

1. This criminal revision application, C.R.R. No. 353 of 2023, has been

preferred by the petitioners, primarily the paternal family of the deceased

Lipika Ghosh, seeking the transfer of Sessions Case No. 138/2014 from

the court of the Additional District Judge, 4th Court, Jalpaiguri, to any

Additional District and Sessions Judge in Siliguri, falling within the

sessions division of Darjeeling. The essence of their prayer is founded on

grounds of ensuring a fair trial, facilitating the convenience of parties

and witnesses, and ultimately upholding the ends of justice.

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2. The genesis of the Sessions Case lies in the tragic demise of Lipika

Ghosh on February 27, 2011, who was found hanged in her matrimonial

home. Lipika, daughter of Petitioner No. 1, Smt. Itu Rani Ghosh, and

Petitioner No. 2, Kalachand Ghosh, was married to Nitai Ghosh

(Opposite Party No. 2) in 2008. The petitioners allege that a significant

dowry was provided at the time of marriage, followed by continuous

physical and mental torture over further dowry demands from her

husband and in-laws (Opposite Party Nos. 2 to 7), reportedly leading to

multiple hospitalizations. Consequently, an FIR (No. 162/11) was

initially lodged under Sections 498A, 302, and 34 of the Indian Penal

Code (IPC). Subsequently, the chargesheet (No. 504/2012 dated March

26, 2012) altered the charge from murder (Section 302 IPC) to abetment

of suicide (Section 306 IPC), while retaining Sections 498A/34 IPC and

adding Sections 3 and 4 of the Dowry Prohibition Act.

3. The case was committed to the Sessions Court on April 30, 2014, with

charges framed on August 13, 2018. However, despite the passage of

over a decade since the chargesheet, and nearly seven years since

charges were framed, only four out of eighteen prosecution witnesses

have been examined. These include PW1, Smt. Itu Rani Ghosh

(examined on June 28, 2023), PW2 Amal Ghosh and PW3 Dinabandhu

Ghosh (examined on July 20, 2023), and PW4 Rana Ghosh (examined on

August 09, 2023). The petitioners attribute this protracted delay and

slow progress to several impediments, necessitating the present

application for transfer.

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4. In support of their plea, Mr. Subhashish Misra, Learned Advocate for the

petitioners, presented compelling arguments. Foremost among these is

the contention that the accused and their agents have repeatedly

threatened the unexamined witnesses, who are close family members of

the deceased. These threats, as alleged, include chilling warnings of "dire

consequences" and facing the "same incident" as Lipika Ghosh.

Furthermore, it is asserted that the petitioners' initial advocate was also

intimidated into withdrawing from the case, a circumstance which, if

proven, severely impacts their right to legal representation. The

petitioners have appended documentary evidence, namely "Copy of the

said Complaints, postal receipts, and track reports" (Annexure P1), to

substantiate their attempts to report these threats to the authorities.

5. Beyond the grave issue of witness safety, Mr. Misra highlighted

significant logistical hardships. The five key charge-sheeted witnesses,

including the petitioners themselves, reside in Darjeeling District,

approximately 100 km from the trial court in Jalpaiguri. This

necessitates an arduous 200 km round trip for each court appearance,

causing considerable inconvenience, exacerbated by frequent

adjournments. This burden is particularly acute for two crucial

witnesses, Kalachand Ghosh (over 60) and Parimal Ghosh (over 70), who

reportedly suffer from age-related health issues, rendering such a

journey practically impossible. Concomitantly, serious allegations were

labelled against the Public Prosecutor, asserting a lack of impartiality

manifested through "friendly behavior" towards the accused, granting

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"undue advantages" without objection, and a general lack of "full efforts"

during the trial, suggesting potential dereliction of duty. Mr. Misra

contended that these factors, taken collectively, demonstrate that a fair

and impartial trial cannot be guaranteed in the current court in

Jalpaiguri, and thus, a transfer to Siliguri, merely 10 km from their

residence, would enable witnesses to depose freely, ensuring proper

adjudication and serving the "ends of justice" under Section 407 Cr.P.C.

6. Conversely, Mr. Aditi Shankar Chakraborty, Learned Advocate for the

State, and Mr. Aniruddha Biswas, Learned Advocate for the private

Opposite Parties, vehemently opposed the application. They

characterized it as a "delaying tactic" by the petitioners, whom they

perceived as "not interested and willing to proceed with their case," citing

the slow trial progress as indicative of the petitioners' lack of inclination

towards expeditious disposal. Regarding the allegations of threat, Mr.

Chakraborty contended these were only "completely false and fabricated

allegation" lacking substantiation by formal FIRs or medical certificates

for the ailing witnesses. While acknowledging the petitioners' submission

of "complaints, postal receipts, and track reports," he argued these

merely confirmed complaints were made, without proving the veracity of

the threats. It is, however, pertinent to note his curious concession that

if these complaints were indeed ignored by the police, it would "further

substantiate the petitioners' claim of a hostile environment and potential

systemic issues in reporting threats." They further argued that the

Jalpaiguri court possesses proper jurisdiction, the trial is proceeding

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fairly, and a transfer would unduly inconvenience the Opposite Parties

and their witnesses.

7. The core question before this Court is whether the Sessions Case

warrants transfer from the Jalpaiguri Sessions Division to the Darjeeling

Sessions Division based on the grounds pleaded by the petitioners,

namely, alleged threats, distance-related inconvenience, old age and

illness of key witnesses, and perceived lack of diligence by the Public

Prosecutor, to ensure a fair and impartial trial. This determination

hinges on the judicious exercise of powers under Section 407 Cr.P.C.,

read with Sections 401, 397, and 482 Cr.P.C.

8. To answer this question, it is pertinent to consider upon the legal

provision of Section 407 of Cr.P.C.

“407. Power of High Court to transfer cases and appeals .—

(1) Whenever it is made to appear to the High Court—

(a) that a fair and impartial inquiry or trial cannot be had

in any Criminal Court subordinate thereto, or

that some question of law of unusual difficulty is

likely to arise, or

(b) that an order under this section is required by any

provision of this Code, or will tend to the general

convenience of the parties or witnesses, or is

expedient for the ends of justice, it may order—

(i) that any offence be inquired into or tried by

any Court not qualified under sections 177

to 185 (both inclusive), but in other respects

competent to inquire into or try such offence;

(ii) that any particular case or appeal, or class

of cases or appeals, be transferred from a

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Criminal Court subordinate to its authority to

any other such Criminal Court of equal or

superior jurisdiction;

(iii) that any particular case be committed for

trial to a Court of Session; or

(iv) that any particular case or appeal be

transferred to and tried before itself.

(2) The 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:

Provided that no application shall lie to the High Court for

transferring a case from one Criminal Court to another

Criminal Court in the same sessions division, unless an

application for such transfer has been made to the Sessions

Judge and rejected by him.

(3) Every application for an order under sub-section (1) shall be

made by motion, which shall, except when the applicant is the

Advocate-General of the State, be supported by affidavit or

affirmation.

(4) When such application is made by an accused person, the

High Court may direct him to execute a bond, with or without

sureties, for the payment of any compensation which the High

Court may award under sub-section (7).

(5) Every accused person making such application shall give to

the Public Prosecutor notice in writing of the application,

together with a copy of the grounds on which it is made; and

no order shall be made on the merits of the applications

unless at least twenty-four hours have elapsed between the

giving of such notice and the hearing of the application.

(6) Where the application is for the transfer of a case or appeal

from any Subordinate Court, the High Court may, if it is

satisfied that it is necessary so to do in the interest of Justice,

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order that, pending the disposal of the application the

proceedings in the Subordinate Court shall be stayed, on such

terms as the High Court may think fit to impose: Provided that

such stay shall not affect the Subordinate Court’s power of

remand under section 309.

(7) Where an application for an order under sub-section (1) is

dismissed, the High Court may, if it is of opinion that the

application was frivolous or vexatious, order the applicant to

pay by way of compensation to any person who has opposed

the application such sum not exceeding one thousand rupees

as it may consider proper in the circumstances of the case.

(8) When the High Court orders under sub-section (1) that a case

be transferred from any Court for trial before itself, it shall

observe in such trial the same procedure which that Court

would have observed if the case had not been so transferred.

(9) Nothing in this section shall be deemed to affect any order of

Government under section 197.”

9. Section 407 Cr.P.C. vests broad discretionary powers in this Court to

transfer cases where a "fair and impartial inquiry or trial cannot be had"

[Section 407(1)(a)], or where such an order "will tend to the general

convenience of the parties or witnesses, or is expedient for the ends of

justice" [Section 407(1)(c)]. The Hon'ble Supreme Court, in K. Ambarasu

v. State of T.N. (2020), has consistently held that the paramount

consideration for transfer is to secure the "ends of justice," a principle

that encapsulates the need for a fair trial, witness protection, and

convenience of participants. In this context, Section 407(1)(a) Cr.P.C.

ensures a fair and impartial inquiry or trial, which is a fundamental

principle in criminal jurisprudence: justice must not only be done but

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must also appear to be done. If there is a "reasonable apprehension" that

a fair trial is unlikely, as elucidated in Abdul Nazar Madani v. State of

T.N. (2000), the High Court is empowered to intervene. The specific

allegations of threats to witnesses and the advocate in this case are

strong indicators of a hostile atmosphere, directly impacting the fairness

and impartiality of the trial. Furthermore, the allegations concerning the

Public Prosecutor's conduct are deeply troubling. The Public Prosecutor

is not merely a prosecuting agency's tool but a "Minister of Justice,"

duty-bound to assist the court impartially, as underscored by the

Supreme Court in Shiv Kumar v. Hukam Chand (1999). A perceived lack

of diligence or bias can significantly undermine the victim's family's

confidence in the justice delivery system and directly impact the "ends of

justice."

10. In respect of convenience, Section 407(1)(c) Cr.P.C. explicitly recognizes

it as a valid consideration. While inconvenience alone may not be the

sole ground for transfer, it gains considerable significance when

compounded by other factors. The undisputed 100 km distance for a

one-way journey (200 km round trip) presents a considerable logistical

burden, particularly for repeated court appearances over a protracted

trial, and especially for elderly and infirm witnesses such as Kalachand

Ghosh and Parimal Ghosh. The proximity of Siliguri (10 km) serves to

drastically mitigate this hardship. Moreover, the protracted delay in the

trial, with only 4 out of 18 witnesses examined in nearly a decade,

implicates the fundamental right to a speedy trial under Article 21 of the

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Constitution. If the conditions in Jalpaiguri—intimidation,

inconvenience, and alleged prosecutorial issues are contributing to this

delay, then transfer becomes expedient to ensure the trial moves forward

effectively. In such exceptional circumstances, this Court, through its

inherent powers under Section 482 Cr.P.C., can intervene to prevent

abuse of process and secure justice.

11. On meticulous consideration of the facts and the applicable legal

principles, a strong prima facie case exists for the transfer of Sessions

Case No. 138/2014. The cumulative effect of the serious allegations

concerning witness intimidation, the alleged partiality of the Public

Prosecutor, and the undeniable logistical hardships faced by the

petitioners and their elderly witnesses, compels to conclude that a fair

and impartial trial in Jalpaiguri is gravely compromised. The

apprehension articulated by the petitioners appears to be reasonable

and well-founded, not merely a ruse to delay proceedings. Upholding the

principles of natural justice and ensuring confidence in the

administration of criminal justice unequivocally demands a conducive

environment for the trial.

12. In view of foregoing, Criminal Revision Application No. 353 of 2023 is

hereby allowed.

13. Sessions Case No. 138 of 2014, currently pending before the Learned

Additional District Judge, 4th Court, Jalpaiguri, is hereby transferred to

the court of the Learned Additional District and Sessions Judge, Siliguri,

within the sessions division of Darjeeling.

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14. The Learned Additional District Judge, 4th Court, Jalpaiguri, is directed

to transmit the entire case record forthwith to the Learned District and

Sessions Judge, Darjeeling, who shall thereafter transfer the same to the

court of a competent Additional District and Sessions Judge in Siliguri

for expeditious trial and disposal in accordance with law.

15. All concerned parties are directed to cooperate fully with the transferee

court to ensure the swift and fair conclusion of the trial.

16. Let a copy of this judgment be sent to the Learned Additional District

Judge, 4th Court, Jalpaiguri, and to the Learned District and Sessions

Judge, Darjeeling, for immediate necessary action.

17. The Registrar of this Circuit Bench to communicate this order to the

respective Sessions Divisions for compliance.

18. There shall be no order as to costs.

19. The interim order/orders, if any, granted earlier, stands vacated.

20. The Trial Court Records (TCR), if any, shall be sent down to the Learned

Trial Court at once.

21. The Case Diary, if any, be returned forthwith.

22. Urgent Photostat certified copy of this order, if applied for, be given to

the parties, as expeditiously as possible, upon compliance with the

necessary formalities in this regard.

(Uday Kumar, J.)