Orissa High Court
V. Rameswar Raju vs State Of Orissa And Ors. on 10 January, 2002
Equivalent citations: 2002CRILJ3226
Author: M. Papanna
Bench: M. Papanna
JUDGMENT M. Papanna, J.
1. This is an application under Section 407 of the Code of Criminal Procedure filed by the petitioner seeking transfer of Sessions Case No. 9/2000 from the Court of the learned Addl. Sessions Judge, Parlakhemundi to any other Court situated at Bhubaneswar having equal jurisdiction to try and dispose of the same.
2. Relevant facts of the case, leading to filing of the resent Misc. Petition, are that the petitioner is the informant in G.R. Case No. 126/99 corresponding to Sessions Case No. 9/2000 now subjudice before the learned Addl. Sessions Judge, Parlakhemundi, whereas opposite parties 2 to 4 are the accused persons facing trial before the above Court under Sections 498-A 302, 304-B/34, IPC read with Section 4 of the D.P. Act. The victim is the daughter of the present petitioner. She was given in marriage to opposite party No. 4. During her stay in her conjugal home at Parlakhemundi she was done to death by the accused persons. It is alleged by the informant that for non-fulfilment of their demand for dowry the accused persons poured kerosene on her body and set fire to it, as a result of which she died of the burn injuries. Accordingly, on the information lodged by the present petitioner in the Police Station, Parlakhemundi P.S. Case No. 126/99 was registered against the accused persons.
3. In course of hearing, learned counsel Shri P.C. Jena and his associate Shri P.K. Maharaj were found absent. On the other hand, Shri Jagannath Patnaik and Shri D. Nayak who appeared for the opposite parties contended that the petitioner has not made out a case for transfer of the proceeding in Sessions Case No. 9/2000 from the Court of the learned Addl. Sessions Judge, Parlakhemundi to any other Court having equal jurisdiction to try and dispose of the same.
4. While adjudicating an application under Section 407, Cr.P.C. the petitioner is required to put forth strong grounds for transfer of a case from one Court to another. When a party moves a petition under Section 407, Cr.P.C. seeking transfer of a proceeding must show reasonable apprehension that justice will not be done by the learned trial Judge before whom his case is subjudice. The cardinal principle is that from the point of view of public justice there must be compelling and impelling grounds for such transfer though the facts and circumstances may differ from case to case. It is not the hypersensivity nor the relative convenience of a party nor easy availability of legal services nor even mini grievances would be the criterion for the Court to exercise its power of transfer. Justice should not only be done but it should be seen to have been done is the highest principle in the administration of law. That being the intention of the legislature and particularly when the petitioner's counsel Shri Jena having been not present to argue his case before this Court, I am required to pursue the pleadings embodied in the application for transfer.
5. Having perused the pleadings in para-graph-4 of the application, I have found that the accused persons are said to be influencial as well as moneyed persons who by prevailing upon the prosecuting agency caused delay in submitting charge-sheet against the accused persons in time for which the accused persons were released on bail by the learned Addl. Sessions Judge, Parlakhemundi under Section 167(2), Cr.P.C. This is not a ground at all for consideration while adjudicating a petition under Section 407, Cr.P.C.
6. The prosecuting agency submitted charge-sheet against the accused persons (opposite parties 2 to 4) but showing the victim's husband opposite party No. 4 as ab-sconder for which after taking cognizance of the offence N.B. W. was issued against him. His application under Section 438, Cr.P.C. in Criminal Misc. Case No. 2545/99 for pre-arrest bail was rejected by this Court. But suppressing this fact he filed another application u/Section 438, Cr.P.C. before the learned Addl. Sessions Judge, Parlakhemundi, who directed him to appear before the learned S.D.J.M., Parlakhemundi and move for bail and in case of rejection of his prayer he would approach the learned Addl. Sessions Judge for bail. Accordingly, on the date fixed he surrendered before the learned S.D.J.M., Parlakhemundi and moved for bail but when his prayer for bail was rejected, he moved the learned Addl. Sessions Judge for bail and the latter granted him bail on the ground that the co-accused were released on bail. The contention of the petitioner is that the co-accused were released on bail on technical ground because of failure of the prosecution to submit charge-sheet within time and that being so, the learned Addl. Sessions Judge, Parlakhemundi showed favour to opposite party No. 4 in granting bail on the very same day of his surrender before the learned S.D. J. M., Parlakhemundi. But in my opinion, granting of bail to the accused at one stage or other by the trial Court cannot be a ground for apprehending that the said Court shall not do justice to the informant particularly when the result of the trial of the case depends on its merit or legal evidence.
7. In paragraph-10 of the application, the petitioner has admitted to have earlier approached this Court in Cri. Misc. Case No. 4667/2000 seeking transfer of the case in question but the same was disposed of on 9-5-2001 by a single Bench of this Court presided over by Hon'ble Shri Justice L. Mohapatra, with an observation that since the allegations made in the application were not supported by any document, the prayer for transfer of the case under Section 407, Cr.P.C. was disallowed. His Lordships observed further that it is open for the petitioner to approach again if occasion arises. Therefore, basing on the aforesaid observation, the petitioner has once again approached this Court seeking transfer of the case from the Court of the Addl. Sessions Judge, Parlakhemundi to any other Court having similar jurisdiction to try and dispose of the proceeding.
8. In paragraph-11 of the application for transfer, the petitioner has stated that when the case was taken up for trial by issuing summons to the informant and other witnesses for their evidence before the learned Addl. Sessions Judge, Parlakhemundi, the accused persons tried to prevail upon the witnesses but having failed in their attempt they threatened them by sending Gundas to terrorise them with a warning not to come to Parlakhemundi to give their evidence before the trial Judge. It is further alleged that petitioner No. 2 threatened the informant over phone that unless he compromised the case, the situation would be grave and if they would go to Parlakhemundi and depose against the accused, they would not return to Berhampur with their lives. Because of the threat given to the witnesses including the informant they are not in a position to appear before the learned trial Judge at Parlakhemundi for which they apprehends that there cannot be any fair and impartial trial of the case before the above Court
9. In paragraph-15 of the application for transfer a stand has been taken on behalf of the petitioner that after retirement, the accused persons as well as the petitioner and the witnesses having been staying at Bhubaneswar, no prejudice will be caused to either of the parties to the case, if the trial of the case is transferred from the Court of the Addl. Sessions Judge, Parlakhemundi to any other Court situated either at Berhampur or at Bhubaneswar thereby attendance of the prosecution witnesses can be procured easily and conveniently.
10. No doubt, this is a case of dowry death where the accused persons are alleged to have committed a serious offence punishable under Sections 498-A, 302, 304-B/34, I.P.C. read with Section 4 of the D.P. Act. That being so, the learned trial Judge is called upon to take steps on a petition if moved before him to see that the witnesses appear before him without any threat by the accused persons in order that fair and impartial trial can be ensured but no petition as much having been moved before him, the learned trial Judge had no scope to take such steps. The learned Public Prosecutor who has been entrusted with the case has never moved such a petition drawing attention of the Court to any such threat given by the opposite parties to the petitioner and other witnesses.
11. There is also no document to show regarding any complaint made before the local Police in connection with the alleged threat given to the witnesses by the accused persons. A perusal of the L.C. R. indicates that during the period from 17-8-2000 to 29-8-2001 as many as 23 prosecution witnesses have been put in the witness box on different dates in the Court of the learned Addl. Sessions Judge, Parlakhemundi before whom no motion was made by the learned Public Prosecutor for cancellation of bail granted to the opposite parties on the alleged ground of terrorising the witnesses already examined. At the same time, I do not find any material from the L.C.R. for drawing an inference that the persons who are hostile are interfering with the course of justice either directly or indirectly. In such a case, provisions of Section 407, Cr.P.C. should not be applied particularly when it does not promote the ends of justice and rather facilitate delaying justice and causing inconvenience to both the parties.
12. Section 407, Cr.P.C. empowers the High Court to exercise power to transfer a case from one Criminal Court to the other having equal jurisdiction either suo motu or on the report of the trial Judge or on the application of either of the parties to the proceeding. In the present case, it is the informant who made an application under Section 407, Cr.P.C. for transfer of the case in question on the ground stated above. Subsection (1) of Section 407, Cr.P.C. provides the following conditions on fulfilment of which only prayer for transfer of a case can be entertainable:--
(i) A fair or impartial trial cannot be heard;
(ii) Some question of law of unusual difficulty is likely to arise;
(iii) An order under Section 407 is required by any provision of the Code;
(iv) It will tend general convenience of the parties or witness; and
(v) It is expedient for the ends of justice.
13. In the present case, the petitioner has put stress on grounds No. (iv) and (v) only for transfer of the case, but admittedly many of the witnesses numbering 23 having been examined, the petitioner's prayer for transfer of the case is not entertainable. In this connection, I would like to refer to 1982 Cri. LJ 1944 : AIR 1982 SC 1558, Balaji Singh v. State of Jammu and Kashmir wherein the Hon'ble Apex Court has taken the following view at page 1944 of Cri LJ:--
Nor do we find that it would be a correct principle to apply to the transfer of criminal cases that they should be heard at the place wherefrom large number of witnesses to be examined. 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.
14. While parting with the order, I would like to quote the following few lines from the decision of this Court reported in (1995) 2 OCR 32, Bulu @ Prasanta Kumar Panigrahi v. State:--
The High Court will always require some very strong ground for transferring a case from one Judicial Officer to another. A petitioner for transfer is not required to demonstrate that justice will fail. He is entitled to a transfer if there is any circumstances giving arise to an inference that he entertains an apprehension and that it is reasonable on the circumstances alleged. A mere allegation, however, that there is apprehension that justice will not be done in a given case will not be enough. It has to be seen further whether the apprehension is reasonable. To judge these reasonableness, the state of mind of the person concerned is relevant. The apprehension would be of such nature as a reasonable person the accused in the circumstances of the case can entertain the apprehension. A mere feeling which is not justified by the section of the Court trying the case cannot be sufficient. Mere fanciful apprehension on the part of the accused cannot be a ground for transfer of a criminal case. Assurance of fair trial is the first imperative of the dispensation of justice. It, is of paramount importance that the parties arraigned before the Courts should have confidence in the impartiality of the Court.
15. The petitioner who is the informant in the case seems to have lost his confidence in the impartiality of the Court after victim's husband (opposite party No. 4) has been granted bail to which he was not entitled, particularly when his earlier application for bail under Section 438, Cr.P.C. was rejected by this Court. In such a case, a motion for cancellation of his bail should have been made before this Court. But that has not been done. There is also no evidence to show that the remaining witnesses are not in a position to appear before the trial Court to give their evidence because of threat given by the accused persons.
16. In the ultimate result, the petition for transfer of the case being devoid of any merit is hereby disallowed. The trial Court is directed to dispose of the case on its own merit basing on the legal evidence after examining the remaining charge-sheet witnesses within six months from the date of communication of this order and report compliance. In case of any motion being made before him for giving protection to the remaining witnesses against threat, if any, given by the accused persons, he shall direct the Superintendent of Police concerned to provide them security thereby ensuring fair and impartial trial of the case the L.C. R. be sent back forthwith.