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2014 DIGILAW 195 (ORI)

Sanjeeb Kumar Sahu v. State of Orissa

2014-03-26

S.K.MISHRA

body2014
ORDER : 26.03.2014 - Heard learned counsel for the petitioner and learned Standing Counsel for the State. 2. The petitioner has filed this application praying to transfer T.R.No. 43 of 2012 from the learned Judge, Special Court (Vigilance), Balasore to the Court of the learned Special Judge (Vigilance), Sambalpur for the convenience of the parties and the witnesses. 3. It is stated that Balasore P.S. Case No. 63/2009 has been initiated against the present petitioner for the alleged commission of offence under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the "Act" for brevity). It is stated that the alleged offence was committed at various places such as Jharsuguda, Jaleswar, Barpali and Chhend where the petitioner was either posted or has his residence. Thus, the Special Courts having territorial jurisdiction over each of those places, such as the Special Courts at Sambalpur and Balasore are competent to try the offence alleged against the petitioner. It is stated by the petitioner that most of the witnesses belong to Bargarh, Jharsuguda and Rourkela. As such it will be easier for them to appear before the Special Judge (Vigilance), Sambalpur than to attend the Court at Balasore. 4. Section 407 of the Code of Criminal Procedure, 1973 provides for the power of High Court to transfer cases and appeals. The said section reads as follows: "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, it may order- (i) that any offence be inquired into or tried by any Court not qualified under Sections 177 to 185 (both inclusive) but in other respects competent to inquire into or try such offence; (ii) that any particular case or appeal, or class or cases or appeals, be transferred from Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction. (iii) that any particular case be committed for trial to a Court of Session; or (iv) that any particular case or appeal be transferred to and tried before itself. (2) The High Court may act either on the report of the Lower Court, or on the application of a party interested, or on its own initiative; Provided that no application shall lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him. (3) Every application for an order under Sub-section (1) shall be made by motion, which shall, except when the applicant is the Advocate-General of the State be supported by affidavit or affirmation. (4) When such application is made by an accused person, the High Court may direct him to executes a bond, with or without sureties, for the payment of any compensation which the High Court may award under Sub-section (7). (5) Every accused person making such application shall give to the Public Prosecutor notice in writing of the application, together with a copy of the grounds on which it is made; and no order shall be made on the merits of the application unless at least twenty-four hours have elapsed between the giving of such notice and the hearing of the application. (6) Where the application is for the transfer of a case or appeal from any subordinate Court, the High Court may, if it is satisfied that it is necessary so to do in the interests of justice, order that, pending the disposal of the application the proceedings in the subordinate Court shall be stayed, on such, terms as the High Court may think fit to impose: Provided that such stay shall not affect the subordinate Court's power of remand under Section 309. (7) Where an application for an order under Sub-section (1) is dismissed, the High Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider proper in the circumstances of the case. (8) When the High Court orders under Sub-section (1) that a case be transferred from any Court for trial before itself, it shall observe in such trial the same procedure which that Court would have observed if the case had not been so transferred. (9) Nothing in this section shall be deemed to affect any order of Government under Section 197." 5. Clause (c) of Sub-section (1) provides that whenever this Court feels 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, then a particular case or appeal be transferred and tried by any other Court. Convenience of parties or witnesses is a ground for transferring the case from one Court to another. Sub-section (4) provides that when such application is made by an accused person, the High Court may direct him to executes a bond, with or without sureties, for the payment of any compensation which the High Court, may award under Sub-section (7). Sub-section (7) provides that where an application for an order under Sub-section (1) is dismissed, the High Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any, person who has opposed the application such sum not exceeding one thousand rupees as it may consider proper in the circumstances of the case. Thus, it is seen that an accused has also a locus standi to pray for transfer of the case. 6. In the case of Mrudul M. Damle and another v. C.B.I., New Delhi 2012 (II) OLR (SC) 347, the Supreme Court has held that convenience of the parties including the witnesses to be produced at the trial is also a relevant consideration for deciding the transfer petition. The convenience of the parties does not necessarily mean the convenience of the petitioner alone who approached the Court on misconceived notions of apprehension. Convenience for the purpose of transfer means the convenience of the prosecution, other accused, the witnesses and the larger interest of the society. The convenience of the parties does not necessarily mean the convenience of the petitioner alone who approached the Court on misconceived notions of apprehension. Convenience for the purpose of transfer means the convenience of the prosecution, other accused, the witnesses and the larger interest of the society. Similar view has also been taken by the Supreme Court in the case of Abdul Nazar Madani v. State of Tamil Nadu and another, AIR 2000 Supreme Court 2293 and this Court in the case of Satyananda Pani v. State of Orissa, 2000 (I) OLR 181 . 7. Applying the aforesaid principles of the case in hand, this Court directs that T.R.No. 43 of 2012 be transferred from the learned Judge, Special Court (Vigilance), Balasore to the Court of the learned Special Judge (Vigilance), Sambalpur for trial. With such observation, the TRPCRL is allowed. Urgent certified copy of this order be granted on proper application. TRPCRL allowed.