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2006 DIGILAW 568 (ORI)

Niraj alias Nipu Behera v. State of Orissa

2006-07-28

A.S.NAIDU

body2006
JUDGMENT A. S. NAIDU, J. : This is an application under Section 407(2) of the Code of Criminal Procedure with a prayer to set aside the order dated 13.6.2006 passed by the Sessions Judge, Mayurbhanj, Baripada in Crl.Misc. Appl. No.474 of 2004 rejecting the prayer of the petitioner for transfer of S.T. Case No.18/27 of 2004 from the Court of the Assistant Sessions Judge, Rairang¬pur to any Court having jurisdiction to try the said case at Baripada. 2. The petitioner is facing trial in the aforesaid S.T. Case before the Assistant Sessions Judge, Rairangpur for alleged commission of offences under Sections 452/307/324/506(II)/34 IPC. Initially the case had been registered as G.R. 165 of 2004 and after commitment the same has been registered as the aforesaid S.T. Case. The petitioner filed a petition before the Sessions Judge, Mayurbhanj, Baripada under Section 408 CrPC, registered as the aforesaid Crl.Misc. Appl. praying to transfer the said Ses¬sions Trial Case from the Court of the Asst.Sess.Judge, Rairang¬pur to any other Court at Baripada having jurisdiction to try the said case,mainly on the ground that the lawyers of the Rairangpur Bar were on strike for more than a month on the issue of peti¬tioner’s father, a police officer, having manhandled and illegal¬ly arrested an advocate of the said Bar. According to the peti¬tioner he reasonably apprehended that he would be deprived of getting legal services of any advocate at Rairangpur to defend him in the case and consequently would be deprived of justice. 3. The FIR lodged on 19.4.2004, on the basis of which the aforesaid S.T. case has come into being, reveals that on 19.4.2004 at 10.30 a.m. the petitioner along with his two friends came in an Ambassador car to the shop of informant Arun Kumar Charan Pahadi and the petitioner entering inside the shop of the informant had assaulted Bibek and Pankaj, sons of the inform¬ant, and nephew of Arabinda Pahadi by means of Bhujali. As a result of such assault both Bibek and Pankaj having sustained bleeding injuries were admitted in the Rairangpur Hospital for treatment and the salesman of the informant had detained the accused-petitioner. Pursuant to filing of FIR by Arun Kumar Charan Pahadi police apprehended the petitioner and forwarded him to Court. 4. As a result of such assault both Bibek and Pankaj having sustained bleeding injuries were admitted in the Rairangpur Hospital for treatment and the salesman of the informant had detained the accused-petitioner. Pursuant to filing of FIR by Arun Kumar Charan Pahadi police apprehended the petitioner and forwarded him to Court. 4. It appears that the informant and some prosecution witnesses in the aforesaid G.R. Case No.165 of 2004/S.T. Case No.18/27 of 2004 are also facing trial as accused in G.R. Case No.522 of 2004 in the Court of the SDJM, Baripada, which was initiated on the basis of the FIR lodged by the petitioner. Thus according to the learned counsel for the petitioner there were case and counter-case among the informant side and the accused side. 5. After perusing the materials on record the learned Sessions Judge in the impugned order has observed that the al¬leged occurrence relating to S.T. No.18/27 of 2004 had taken place at the Rairangpur market and all the witnesses cited in the chargesheet were residents of the said town. He further observed that the averment of the petitioner that he would not get assist¬ance of any advocate at Rairangpur to defend him was not correct as the records showed that he was always being represented by an advocate. The further averment of the petitioner he being a poor person could not afford to engage any advocate to defend him was also not accepted by the Sessions Judge as it appeared that he was son of an A.S.I. of Police. 6. I have heard learned counsel for the petitioner at length and have perused the impugned order. The said order is a well reasoned one touching all the averments of the petitioner and weighing the circumstances of the case. The question of transfer of a case from one Court to another had engaged the attention of the Apex Court in the case of Maneka Sanjay Gandhi v. Rani Jethmalani, reported in 1079 SC 468, where more or less similar ground as urged by the petitioner in the present case, i.e. apprehension of substantial prejudice to the accused due to non-availability of competent legal service and absence of conge¬nial atmosphere for a fair and impartial trial, was raised. But then the said prayer was turned down by the Apex Court with the observation as quoted hereunder :- “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 hyper¬sensitivity or relative convenience of a party or easy availabil¬ity 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 necessi¬tous 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. The grounds for the transfer have to be tested on this touch-stone bearing in mind the rule that nor¬mally 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 circumstance.” 7. Considering the present case in the touch-stone of the observation of the Apex Court in the decision supra, this Court finds that the grounds on which the petitioner seeks transfer of the S.T. Case from Rairangpur to Baripada do not weigh in his favour. This Court feels that if the prayer of the petitioner is allowed, that would rather harass the prosecution witnesses, disturb the proceedings of the case and disrupt the judicial hearing. In such circumstances and further as there is no ille¬gality or infirmity in the impugned order calling for interfer¬ence of this Court, the present TRPCRL merits no consideration. The TRPCRL is dismissed. TRPCRL dismissed.