Orissa High Court
Smt. Jyotirmayee Gurahandi vs State Of Odisha & Others on 14 March, 2019
Author: S. K. Sahoo
Bench: S. K. Sahoo
TRPCRL No. 57 of 2017
Smt. Jyotirmayee Gurahandi ...... Petitioner
-Vrs.-
State of Odisha & Others ...... Opp. Parties
04. 14.03.2019 Heard Mr. Bijaya Kumar Ragada, learned counsel
for the petitioner and Mr. Trilochan Nanda, learned counsel
for the opposite parties nos. 2 to 6.
In this application under section 407 of Cr.P.C.,
the petitioner Smt. Jyotirmayee Gurahandi has sought for
transfer of G.R. Case No.85 of 2013 pending before the
learned S.D.J.M., Bolangir to the Court of learned S.D.J.M.,
Bargarh.
The petitioner is the wife of the opposite party
no.2 Debananda @ Joytin Gurahandi. The petitioner lodged
a first information report on 01.02.2013 before the
Inspector in charge of Sadar police station, Bolangir on the
basis of which Bolangir Sadar P.S. Case No.21 of 2013 was
registered under sections 498-A/506/34 of the Indian Penal
Code and section 4 of the Dowry Prohibition Act which
corresponds to G.R. Case No. 85 of 2013 pending in the
Court of learned S.D.J.M., Bolangir. In the said case, after
completion of investigation, charge sheet was submitted on
07.05.2013 against the opp. parties nos.2 to 6 under
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sections 498-A/506/34 of the Indian Penal Code and
section 4 of the Dowry Prohibition Act.
It is contended by the learned counsel for the
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petitioner that after the matrimonial dispute, the petitioner
is now staying at her father's place at Ekambra Chhak in
the district of Bargarh. The opp. parties no.2 to 6 are
staying at Bolangir. The opp. party no.2 is a rowdy person
and there is every possibility that he would threaten the
petitioner if she goes to Bolangir and try to tamper with the
prosecution evidence by gaining over the witnesses and
there is also every possibility that the opposite party no.2
would put undue influence on every lawyer for which the
petitioner cannot get justice, if the trial of the case
proceeds at Bolangir. It is further submitted that there is
reasonable apprehension to the life of the petitioner at
Bolangir and it would be too difficult to her part to travel
from Bargarh to Bolangir to attend the Court on each date
and it is also not possible on the part of her family
members to accompany her to attend the Court at Bolangir
as because her father is not in a position to accompany her.
Therefore, for the sake of convenience of the petitioner,
G.R. Case no.85 of 2013 be transferred from the Court of
learned S.D.J.M., Bolangir to the Court of learned S.D.J.M.,
Bargarh. Reliance was placed on the case of Sumita Singh
-Vrs.- Kumar Sanjay reported in A.I.R. 2002 Supreme
Court 396.
Learned counsel appearing for the opp. parties
nos. 2 to 6 on the other hand contended that the grounds
taken in the application for transfer are not valid grounds
and in case of any apprehension to the life of the petitioner
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at Bolangir, she can very well approach the concerned
police station, in the event of which necessary police
protection can be provided to her and her witnesses. It is
further argued that since in the Magistrate's Court, the
Public Prosecutor or Asst. Public Prosecutor is supposed to
conduct the case on behalf of the State, it is very difficult
to accept that the opp. party no.2 husband who is a
cultivator would put undue influence on every lawyer for
which the petitioner would not get justice in the Court at
Bolangir. It is further submitted that the merely because
the petitioner-wife is residing at Bargarh in her father's
place, it cannot be ground for transferring the case from
Bolangir to Bargarh inasmuch as the cause of action arose
within the local jurisdiction of the Court of S.D.J.M.,
Bolangir and most of the witnesses are also from Bolangir
and the convenience of the accused persons are paramount
consideration which cannot be overlooked. He placed
reliance in the cases of Smt. Sankura Parvati -Vrs.-
State reported in (1998) 14 Orissa Criminal Reports
588, Kuna @ Dalagobinda Mohanty -Vrs.- Bulu @ Jaya
Gobinda Mohanty reported in (1998) 14 Orissa
Criminal Reports 409, Bulu @ Prasanta Kumar
Panigrahi -Vrs.- The State reported in (1995) 9
Orissa Criminal Reports 32 and State -Vrs.- Mirza
Asraf Alli Baig reported in 2005 (I) Orissa Law
Reviews 495.
In case of Smt. Sankura Parvati -Vrs.- State
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reported in (1998) 14 Orissa Criminal Reports 588, it
is held that in case of transfer of a case, not only interest of
the complainant but also the interest of the accused has to
be looked into. There is general consensus of judicial
opinion that in matters of transfer, greater emphasis is to
be led on the convenience of the accused rather than of the
prosecutor.
In case of Kuna @ Dalagobinda Mohanty -
Vrs.- Bulu @ Jaya Gobinda Mohanty reported in
(1998) 14 Orissa Criminal Reports 409, it is held that
according to criminal jurisprudence and the provisions in
the Code, trial of an offence normally should be held in that
criminal Court within whose local limits, the offence was
committed. Exercise of the power under section 407 Cr.P.C.
is to make an exception to the said provisions. It is further
held that mere apprehension in the mind of the petitioners
without disclosing the basis, is not sufficient to allow them
to chose their own forum of trial.
In case of Bulu @ Prasanta Kumar Panigrahi
-Vrs.- The State reported in (1995) 9 Orissa Criminal
Reports 32, it is held that 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
impelling, from the point of view of public justice and its
attendant environment, is necessary if the Court is to
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exercise its power of transfer. The High Court will always
require very strong ground for transferring a case from one
judicial officer to another. 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 and to judge this
reasonableness, the state of mind of the person concerned
is relevant.
In case of State -Vrs.- Mirza Asraf Alli Baig
reported in 2005 (I) Orissa Law Reviews 495, it is
held that as per section 177 of Cr.P.C. ordinarily an offence
is to be enquired into and tried before the Court within
whose local jurisdiction it was committed. In exceptional
cases, as provided under section 407 of the Cr.P.C. a case
can be transferred from one criminal Court to another.
The decision on which reliance was placed by
the learned counsel for the petitioner is not applicable in
this case as that was a case of husband's suit against the
wife relating to matrimonial dispute and the Hon'ble
Supreme Court held that the wife's convenience must be
looked into.
There is no dispute that the present criminal
case arises out of matrimonial dispute between the parties.
It is also not disputed at the bar that at present the
petitioner is residing at Bargarh at her father's place and
her in-laws opp. parties are residing at Bolangir. It is also
not disputed that the cause of action arose within the
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territorial jurisdiction of learned S.D.J.M., Bolangir and the
alleged offences were committed while the petitioner was
staying in her in-laws' house at Bolangir. On perusal of the
charge sheet, it appears that out of fifteen charge sheet
witnesses, apart from the petitioner, charge sheet
witnesses nos.9, 10, 11, 12, 13 and 14 are from the
Bargarh district whereas the charge sheet witnesses nos. 2
to 8 are from Bolangir district.
Except the bald apprehension that the opp.
party no.2 would threaten the petitioner if she goes to
Bolangir and try to tamper with the prosecution evidence
by gaining over the witnesses, there is no cogent material
like any previous overt act committed by the opp. party
no.2 against either the petitioner or any of the prosecution
witnesses to create any such apprehension in the mind of
the petitioner. Similarly the contention of the learned
counsel for the petitioner that there is every possibility that
the opposite party no.2 would put undue influence on the
lawyers at Bolangir for which the petitioner cannot be get
justice if the trial of the case proceeds there, is a
scandalous allegation against the members of the legal
fraternity. The legal profession has always been considered
to be a noble profession. The duty of a lawyer is to assist
the Court in the administration of justice. The practice of
law has a public utility flavour. A lawyer must strictly and
scrupulously abide by the code of conduct behoving the
noble profession. The legal profession is nothing without its
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ideals and ethics. It is expected that a member of the legal
fraternity should not make any unwarranted comments or
allow anyone to do so against another member or members
of the fraternity in general forgetting his responsibility to
keep the sanctity of the profession at the top.
In a criminal case, as per the section 177 of
Cr.P.C., every offence shall ordinarily be enquired into or
tried by a Court within whose local jurisdiction it was
committed. On the basis of the averments made in the
F.I.R. and other materials on record, it is apparent that the
offences were committed within the local jurisdiction of the
learned S.D.J.M., Bolangir.
Since no other case is pending between the
parties either at Bargarh or Bolangir as stated by the
learned counsel for the respective sides, merely because
the petitioner is at present residing at her father's place at
Bargarh, if the case is transferred on that ground to
Bargarh for her convenience then it would cause
inconvenience not only to the accused persons i.e. opp.
parties nos. 2 to 6 but also to the prosecution witnesses
who are residing at Bolangir.
Needless to say, if there would be any
reasonable apprehension of threat from the side of the opp.
party no.2 either to the petitioner or her witnesses or any
such conduct of the opp. party no.2 creates any
apprehension of danger to the life of the petitioner or her
witnesses, they can very well approach the Inspector in
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charge of Bolangir Sadar police station who shall give due
attention to their grievances and in case of necessity,
provide adequate security to them so that they can give
their evidence in the trial Court in a free and conducive
atmosphere.
In view of the forgoing discussions, I am of the
humble view that the grounds taken in this transfer
application are not sufficient to grant any relief in favour of
the petitioner.
Accordingly, the TRPCRL application being
devoid of merits, stands dismissed.
.......................
S. K. Sahoo, J.
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