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2008 DIGILAW 193 (ORI)

SRI LAXMLDHAR PRADHAN v. STATE OF ORISSA

2008-03-05

S.C.PARIJA

body2008
JUDGMENT : S.C. Parija, J. - The Petitioner has filed this application under Section 407 read with Section 482 Code of Criminal Procedure invoking the inherent jurisdiction of this Court for transfer of Vigilance G.R. Case No. 2/99 (T.R. No. 14 of 2003) pending in the Court of Special Judge (Vigilance), Berhampur to the Court of Special Judge (Vigilance), Bhubaneswar. 2. The background facts of the case is that the Petitioner while working as Assistant Executive Engineer at Bhawanipatna was accused of possession of assets disproportionate to his known source of income and accordingly an F.I.R. dated 6.2.1996 was lodged by the Inspector of Vigilance, Cuttack Division for the offence under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 (for short the "P.C. Act") for the check period from 1.1.1971 to 20.1.1996. The said F.I.R. was registered as Cuttack Vigilance P.S. Case No. 4 of 1996, corresponding to Vigilance G.R. Case No. 110 of 1999 in the Court of Special Judge (Vigilance), Bhubaneswar. 3. Subsequently during pendency of the said Vigilance G.R. Case No. 110 of 1999 before the learned Special Judge (Vigilance), Bhubaneswar, the Inspector of Police, Vigilance, Nabarangpur lodged an F.I.R. dated 27.12.1998 before the Suptd. of Police, Vigilance, Berhampur Division, Berhampur against the Petitioner, while he was working as Executive Engineer, Rural Division, Bhawanipatna, for possessing disproportionate assets to his known and legal source of income for the period from 21.1.1996 to 10.12.1998. The said FIR was registered as Berhampur Vigilance P.S. Case No. 61 of 1998 under Section 13(2) read with Section 13(1)(e) of the P.C. Act, corresponding to Vigilance G.R. Case No. 2 of 1999 in the Court of Chief Judicial Magistrate, Berhampur. 4. The case of the Petitioner is that the Supdt. of Police (Vigilance), Berhampur vide his letter dated 7.10.1999 prayed for transfer of the records of Vigilance G.R. Case No. 2 of 1999 to the Court of the Chief Judicial Magistrate, Cuttack where the other case against the Petitioner, i.e., Cuttack Vigilance P.S. Case No. 4 of 1996 was pending, corresponding to Vigilance G.R. Case No. 110 of 1999. The learned Chief Judicial Magistrate, Berhampur vide order dated 16.11.1999 directed the record be sent to Chief Judicial Magistrate, Cuttack, for being dealt with in Cuttack Vigilance P.S. Case No. 4 of 1996. Consequently, the records were transferred to the Chief Judicial Magistrate, Cuttack. 5. The learned Chief Judicial Magistrate, Berhampur vide order dated 16.11.1999 directed the record be sent to Chief Judicial Magistrate, Cuttack, for being dealt with in Cuttack Vigilance P.S. Case No. 4 of 1996. Consequently, the records were transferred to the Chief Judicial Magistrate, Cuttack. 5. The further case of the Petitioner is that after due investigation, the D.S.P. (Vigilance), Puri submitted final report in Cuttack Vigilance P.S. Case No. 4 of 1996, for insufficient evidence. The said report was accepted on 9.8.2002 and accordingly Vigilance G.R. Case No. 110 of 1999 was closed by the Special Judge (Vigilance), Bhubaneswar. 6. After closure of Cuttack Vigilance P.S. Case No. 4 of 1996, corresponding to Vigilance G.R. Case No. 110 of 1999, the Supdt. of Police (Vigilance), Berhampur requested for transfer of the case back to the Court of the Chief Judicial Magistrate, Berhampur and accordingly the records of Vigilance G.R. No. 2 of 1999 was sent back to Berhampur. Later on, charge sheet dated 29.9.2002 was filed under Section 13(2) read with Section 13(1)(e) of the P.C. Act against the Petitioner for possessing disproportionate assets to the tune of Rs. 2,64,218.05, during the check period from 21.1.1996 to 10.12.1998, which was subsequently transferred to Special Judge (Vigilance), Berhampur as T.R. No. 14 of 2003, corresponding to Vigilance G.R. No. 2 of 1999. 7. Sri S.C. Samantary, learned Counsel for the Petitioner submits that since in the meantime, the Petitioner has retired from Government service and is suffering from different ailments, it would be onerous and difficult on the part of the Petitioner to attend the Court at Berhampur and defend his case and accordingly has prayed for transfer of his case to the Court of Special Judge (Vigilance), Bhubaneswar. The further plea of the Petitioner is that as most of the witnesses are from Cuttack, Bhubaneswar and Berhampur, no inconvenience would be caused to the prosecution, if the case is transferred to the Court of Special Judge (Vigilance), Bhubneswar. The further plea of the Petitioner is that since the records of the case had earlier been sent to Cuttack on the request of the Supdt. of Police, Vigilance, Berhampur, as already stated above, there is no justification as to why the present case against the Petitioner pending in Berhampur cannot be transferred and tried in the Court of the Special Judge (Vigilance), Bhubaneswar. of Police, Vigilance, Berhampur, as already stated above, there is no justification as to why the present case against the Petitioner pending in Berhampur cannot be transferred and tried in the Court of the Special Judge (Vigilance), Bhubaneswar. The Petitioner in this regard relies on a decision of the Supreme Court in the case of Mrs. Urvashi Govind Advani Vs. State of Karnataka and Another. In the said case, the Petitioner who was a widow of 80 years of age, had filed the transfer petition under Section 406 Code of Criminal Procedure before the Apex Court, seeking transfer of the case from the Chief Metropolitan Magistrate, Bangalore to a Court of competent jurisdiction at Mumbai. The Petitioner had prayed for transfer of the case to Mumbai keeping in view the fact that she is a widow aged 80 years and suffering from Cancer and it would not be possible for her to effectively defend herself in the complaint case filed at Bangalore as it would be difficult for her to travel to and fro to Bangalore from Bombay because of her age and disease from which she is suffering. The Supreme Court keeping in view the age of the Petitioner and the fact that she is suffering from Cancer, directed transfer of the case from Bangalore to Mumbai. 8. Sri Srimanta Das, learned Standing Counsel (Vigilance), objects to the prayer of the Petitioner for transfer of the case to Bhubaneswar on the plea that no substantial ground justifying such transfer has been made out by the Petitioner and moreover merely because the records of the case, on earlier occasion, had been transferred to the Court of the Chief Judicial Magistrate, Cuttack for being tried with the other case pending against the Petitioner, i.e., Cuttack Vigilance P.S. Case No. 4 of 1996, the same does not give any right to the Petitioner to seek transfer of his case from Berhampur to Bhubaneswar. Moreover, as the prosecution has been launched against the Petitioner for disproportionate assets under the P.C. Act while the Petitioner was working as Executive Engineer, Rural Division, Nabarangpur, which comes under Berhampur Division of Vigilance, the Court of Special Judge (Vigilance), Berhampur is the competent Court having territorial jurisdiction. 9. Section 407 Code of Criminal Procedure prescribes the power of High Court to transfer cases, relevant portion of which is extracted below : 407. 9. Section 407 Code of Criminal Procedure prescribes the power of High Court to transfer cases, relevant portion of which is extracted below : 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 (b) that some question of law of unusual difficulty is likely to arise; or (c) 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. xxx xxx xxx xxx 10. Considering the aforesaid facts, I am of the view that the decision of the Supreme Court in the case of Mrs. Urvashi Govind Advani v. State of Karnakata and Anr. (supra) has no application to the facts of the present case, as in the said case the only consideration for which the Supreme Court directed transfer of the criminal case from Bangalore, to Mumbai was the very old age of the Petitioner and the fact she was suffering from Cancer. It is an established principle of law that normal course of things should not be lightly interfered with and the case should be allowed to be tried by the Court which has the territorial jurisdiction. It will not be a correct principle to apply to the transfer of criminal cases that they should be heard at the place from where a large number of witnesses are to be examined. In the instant case, as the Special Judge (Vigilance), Berhampur, is the competent Court having territorial jurisdiction to try the case, I find no justification to direct the transfer of the case to Bhubaneswar. The CRLMC is devoid of merits and the same is accordingly dismissed. Final Result : Allowed