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Sibanarayan Sahoo and anr. Vs. State of Orissa and Two ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Misc. Case No. 647 of 1984
Judge
Reported in58(1984)CLT527; 1984(II)OLR1028
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 482
AppellantSibanarayan Sahoo and anr.
RespondentState of Orissa and Two ors.
Appellant AdvocateR.N. Panigrahi and Sanatan Das
Respondent AdvocateN.C. Panigrahi, Addl. Govt. Adv. for Opp. Party No. 1
DispositionCase dismissed
Cases Referred(Ranjit Singh and Anr. v. Popat Rambhaiji Sonawane and Ors.
Excerpt:
.....on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - 2. transfer of the case is sought on the grounds that the two petitioners are residents of cuttack and some of the witnesses are also residents of the district of cuttack and in addition, the petitioners apprehend assault at the instance of the first-informant who is said to be a rich and influential person of banpur. the petitioners are poor persons and it will be most difficult for them to attend the hearing at cuttack. , speaking for the court, has observed and held :assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a..........their lordships of the supreme court have laid down that it would not be a correct principle to transfer a criminal case to a court in whose jurisdiction reside a large number of witnesses to be examined in the case. the supreme court has observed:'the normal course of things should not have been lightly interfered with and the case should have been allowed to be tried by the court which had territorial jurisdiction.'8. keeping in mind the aforesaid principles laid down by the supreme court and this court, i find that there are no just and reasonable grounds for the transfer of the case merely because the petitioners are residents of cuttack and some of the witnesses to be examined for the prosecution belong to the district of cuttack.9. the other ground taken by the petitioners is.....
Judgment:

B.K. Behera, J.

1. The petitioners, who are two of the four accused persons in G. R. Case No. 88 of 1983 pending in the Court of the Judicial Magistrate at Banpur in the district of Puri, seek transfer of the criminal case against them to a Judicial Court at Cuttack. The petitioner are accused of commission of an offence punishable under Section 411 and the two other accused persons (opposite parties Nos. 2 and 3) are accused of commission of an offence punishable under Section 380 of the Indian Penal Code.

2. Transfer of the case is sought on the grounds that the two petitioners are residents of Cuttack and some of the witnesses are also residents of the district of Cuttack and in addition, the petitioners apprehend assault at the instance of the first-informant who is said to be a rich and influential person of Banpur. The State opposes the application for transfer. While Mr. R.N. Panigrahi for the petitions has submitted with reference to the principles laid down by the Supreme Court in AIR 1979 S.C. 1720 (Inder Singh and others v. Kartar Singh) and 36 (1970) C.L.T. 1242 (Alekh Dutta v. Kshetramohan Sahu), that the case should be transferred, the learned Addl. Govt. Advocate has submitted that the trial should be continued in the Court having territorial jurisdiction and there are no reasonable grounds for the transfer of the case.

3. In the case of Inder Singh and Ors. v. Kartar Singh (supra), transfer of the criminal case from Cuttack to Chandigarh was ordered by the Supreme Court in view of thievery 'very peculiar and extraordinary circumstances' of the case and with the observation:

'The petitioners are poor persons and it will be most difficult for them to attend the hearing at Cuttack.'

4. In Alekh Dutta v. Kshetramohan Sahu (supra), it has been observed that the interest not only of the accused, but also of the complainant has to be looked into. There is a general consensus of judicial opinion that in matters of transfer, greater emphasis is to be laid on the convenience and interests of the accused rather than of the prosecutor. While doing so, the interests of the prosecutor and his right to institute criminal proceedings permissible under the law should not also be unreasonably whittled down. In this connection, reference may also be made to a decision of this Court in 54 (1982) C. L, T. 359 (Nabin Chandra Patnaik v. Narendra Mohapatra).

5. In the instant case, the petitioners are residents of Cuttack and as has been submitted by the learned counsel for the petitioners some of the witnesses to be examined by the prosecution belong to the district of Cuttack. The fact remains that the Judicial Court at Banpur has territorial jurisdiction to try the case. Normally, therefore, the case is to be tried in the Court at Banpur. It is not the case of the petitioners that they have no means to go to Banpur to properly defend themselves.

6. In AIR 1979 S. C. 468 (Mrs. Maneka Sanjay Gandhi and another v. Miss Rani Jethmalani), Krishna Iyer, J., speaking for the Court, has observed and held :

'Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the Court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini-grievances. Something more substantial, more compelling, more imperiling, from the point of view of public justice and its attendant environment, is necessitous if the Court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. We have to test the petitioner's grounds on this touch-stone bearing in mind the rule that normally the complainant has the right to choose any Court having jurisdiction and the accused cannot dictate where the case against him should be tried. Even so, the process of justice should not harass the parties and from that angle the Court may weigh the circumstances.'

As held by the Supreme Court, normally the complainant has the right to choose the forum which has jurisdiction to try a criminal case.

7. In AIR 1982 S. C. 1558 (Baljit Singh and Anr. v. State of J. & K. and Ors.), Their Lordships of the Supreme Court have laid down that it would not be a correct principle to transfer a criminal case to a Court in whose jurisdiction reside a large number of witnesses to be examined in the case. The Supreme Court has observed:

'The normal course of things should not have been lightly interfered with and the case should have been allowed to be tried by the Court which had territorial jurisdiction.'

8. Keeping in mind the aforesaid principles laid down by the Supreme Court and this Court, I find that there are no just and reasonable grounds for the transfer of the case merely because the petitioners are residents of Cuttack and some of the witnesses to be examined for the prosecution belong to the district of Cuttack.

9. The other ground taken by the petitioners is that the first-informant, a rich and influential person of Banpur, has been threatening to harass and even assault the petitioners in case they come and defend themselves at Banpur.

10. In AIR 1983 S. C. 292 : 1983 (1) Crimes 623 : 1983 SCC (Criminal) 196 (Ranjit Singh and Anr. v. Popat Rambhaiji Sonawane and Ors.), transfer of the case had been sought on the ground that the safety of the complainant would be in danger. The Supreme Court refused to transfer the case, but directed that arrangements should be made for his safety and security.

11. In the instant case, there are no materials in support of this ground taken by the petitioners. The learned counsel for the petitioners has submitted that no reports have been made to the police authorities regarding any such threat. The learned Addl. Gcvt. Advocate has, however, submitted that if the petitioners have any real apprehension, it would be open to them to approach the appropriate authorities and. if the apprehension is found to be genuine, adequate protection shall be afforded to the petitioners.

12. For the foregoing reasons, I would reject the application. The miscellaneous case is accordingly dismissed.


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