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2016 DIGILAW 706 (ORI)

Sudhanshu Shekhar Mishra v. State of Orissa

2016-08-30

S.K.SAHOO

body2016
JUDGMENT : S. K. Sahoo, J. Heard Mr. Somadarsan Mohanty, learned counsel for the petitioners and Mr. Niranjan Moharana, learned Addl. Standing Counsel for the Vigilance Department. Learned counsel for the petitioners submitted at the outset that the petitioner no.2 Upendranath Giri is dead. In view of such submission, the TRPCRL application so far as the petitioner no.2 is concerned, stands disposed of as infructuous. 2. This is an application under section 407 of Cr.P.C. filed by the petitioners for quashing the order dated 30.07.2007 of the learned Special Judge, Vigilance, Berhampur passed in G.R. Case No. 3 (V) of 1992 in transferring the case to the Court of learned Special Judge, Vigilance, Jeypore with a further prayer that the case be heard and disposed of by the learned Special Judge, Vigilance, Berhampur. The relevant portion of the impugned order dated 30.07.2007 reads as follows:- “Later – As per the direction of the Hon’ble High Court, the case record is transferred to the Court of Special Judge (V), Jeypore for disposal according to law. Put up on the date fixed.” 3. On the basis of the First Information Report lodged by the Inspector of Police, Vigilance, Nawarangpur dated 11.01.1992, the case was instituted under section 13(2) read with section 13(1)(c) of Prevention of Corruption Act, 1988 (hereafter “1988 Act”) and sections 409/472/477-A/34 of the Indian Penal Code and after completion of investigation, charge sheet was submitted against the petitioners and proforma opposite parties and after framing of charges, the trial commenced in the Court of learned Special Judge, Vigilance, Berhampur in G.R. Case No. 3 (V) of 1992. Out of the 42 charge sheeted witnesses, four witnesses were examined and thereafter, by virtue of the impugned order dated 30.07.2007, as per the direction of this Court, the case record was transferred from the Court of Special Judge, Vigilance, Berhampur to the Court of Special Judge, Vigilance, Jeypore for disposal in accordance with law. 4. Learned counsel for the petitioners while challenging the impugned order contended that the petitioner no.1 Sudhanshu Shekhar Mishra is serving at Angul which is at a distance of 592 kms. 4. Learned counsel for the petitioners while challenging the impugned order contended that the petitioner no.1 Sudhanshu Shekhar Mishra is serving at Angul which is at a distance of 592 kms. away from Jeypore and the petitioner no.3 Dhirendra Kumar Choudhury has retired from the Government service w.e.f. 31.10.2006 and he is now staying in his native village Trutiapada under Bolagarh Police Station in the district of Khurda and the distance of Bolagarh to Jeypore is 562 kms. and therefore, it would be extremely difficult on the part of the petitioners nos.1 and 3 to attend the proceeding at Jeypore and therefore, when the trial had already commenced at Berhampur, there was no justification for transferring the case to the Court of Special Judge, Vigilance, Jeypore and accordingly, for the convenience of the parties, necessary order may be passed that the case should continue to be tried before the learned Special Judge, Vigilance, Berhampur. He relied upon the ratio laid down in the case of Sanjeeb Kumar Sahu –Vrs.-State of Odisha reported in 2014 (Vol. 1) Orissa Law Reviews 891 wherein it is 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. Learned counsel for the petitioners further submitted that the case has been transferred on the administrative side on the establishment of the Court at Jeypore and since the petitioners were likely to be affected by such order, they should have been heard before the order of transfer was passed particularly when trial of the case had already commenced. He relied upon the decisions of this Court in cases of Satyananda Pani -Vrs.-State of Orissa reported in (2000) 18 Orissa Criminal Reports 26 and Surendra Kumar Purohit -Vrs.-State of Orissa reported in 2012 (Vol. 2) Orissa Law Reviews 103. 5. Learned Addl. He relied upon the decisions of this Court in cases of Satyananda Pani -Vrs.-State of Orissa reported in (2000) 18 Orissa Criminal Reports 26 and Surendra Kumar Purohit -Vrs.-State of Orissa reported in 2012 (Vol. 2) Orissa Law Reviews 103. 5. Learned Addl. Standing Counsel for the Vigilance Department vehemently opposed the prayer made by the petitioners and submitted that after the establishment of Court of Special Judge, Vigilance at Jeypore, all the cases which were pending in the Court of the Special Judge, Vigilance, Berhampur but coming within the jurisdiction of the learned Special Judge, Vigilance, Jeypore were transferred to Jeypore as per the direction of the Hon’ble High Court as in that position, Court of the Special Judge, Vigilance, Berhampur lacks territorial jurisdiction to try the case and therefore, the contentions raised by the learned counsel for the petitioners are not acceptable in the eye of law. He further contended that out of the 42 charge sheet witnesses, though four witnesses were examined in the Court of learned Special Judge, Vigilance, Berhampur till the transfer of the case but the rest of the witnesses are not only from Berhampur but also from Nawarangpur, Papadahandi and Kalahandi which are closer to Jeypore and as such, there will be no inconvenience for the witnesses to attend the Court at Jeypore and therefore, there is no merit in the application and accordingly, the same should be dismissed. Learned Addl. Standing Counsel for the Vigilance Department placed strong reliance in the case of Bhiaru Ram -Vrs.-Central Bureau of Investigation reported in (2010) 47 Orissa Criminal Reports (SC) 286 wherein it is held as follows:- “9. A perusal of the charge sheet containing all these details clearly shows that witnesses to be examined are not only from Jaipur, Rajasthan, but also from various other places including Mumbai. Though the petitioners may have a little inconvenience, the mere inconvenience may not be sufficient ground for the exercise of power of transfer but it must be shown that the trial in the chosen forum will result in failure of justice. We have already pointed out that except the plea of inconvenience on the ground that they have to come all the way from Rajasthan, no other reason was pressed into service. Even, the request for transfer to Delhi cannot be accepted since it would not be beneficial either to the petitioners or to the prosecution. We have already pointed out that except the plea of inconvenience on the ground that they have to come all the way from Rajasthan, no other reason was pressed into service. Even, the request for transfer to Delhi cannot be accepted since it would not be beneficial either to the petitioners or to the prosecution. In fact, the main accused, respondent nos. 3 & 4 have not filed any petition seeking transfer. In such circumstances, the plea of the petitioners for transfer of the case from the Court of Special Judge, CBI, Greater Mumbai to Special Judge, CBI, Jaipur on the ground of inconvenience cannot be accepted.” He further placed reliance in the case of Kamlesh Kumar -Vrs.-State of Jharkhand reported in 2014 Criminal Law Journal 22 wherein it is held as follows:- “44. In the context of Article 227 of the Constitution, this Court observed in paragraph 12 of Ranbir Yadav –Vrs.-State of Bihar, (1995) 4 Supreme Court Cases 392 that the High Court has superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction and that in its plenary administrative power, the High Court could transfer a case from one Court to another. It was further held that so long as the power is exercised for administrative exigency, without impinging upon or prejudicially affecting the rights and interests of the parties to any judicial proceeding, there is no reason to hold that administrative powers must yield to judicial powers simply because in a given circumstance they coexist. 45. In the present case, the High Court could have exercised its judicial power of transfer under Section 407 of the Code (if called upon to do so) and it could also have exercised its administrative power of transfer under Article 227 of the Constitution, which it did, as is evident from the letter dated 6th May 2002 issued by the Registrar General of the High Court of Jharkhand to the Secretary to the Government, Law (Judl.) Department, Government of Jharkhand. The fact that for an administrative exigency, the High Court decided to exercise its plenary administrative power does not per se lead to the conclusion that the transfer of the case from the Magistrate to the Special Judge was unlawful. The fact that for an administrative exigency, the High Court decided to exercise its plenary administrative power does not per se lead to the conclusion that the transfer of the case from the Magistrate to the Special Judge was unlawful. The legality of the action cannot be called in question in this case since no prejudice has been caused to the petitioners by such a transfer.” 6. Power under Article 227 of the Constitution of India can be exercised suo motu by the High Court as custodian of all justice within the limits of its territorial jurisdiction and for the vindication of its position as such. The power of superintendence conferred on the High Court by Article 227 is administrative as well as judicial and it is wider than the one conferred on the High Court by Article 226 in the sense that the power of superintendence is not subject to those technicalities of procedure or traditional fetters which are to be found in certiorari jurisdiction. The powers under Article 227 are wide and can be used to meet the ends of justice. No restrictions are indicated in the exercise of power under Article 227, and restrictions, if any, are self-imposed. The emphasis of Article 227 is on administrative control, and the judicial power is merely ancillary to the administrative control. 7. Considering the rival submissions made by the learned counsels for the respective parties, it is seen that out of two grounds taken by the learned counsel for the petitioners, the first ground is that the case should not have been transferred to the Court of learned Special Judge, Vigilance, Jeypore from the Court of learned Special Judge, Vigilance, Berhampur as it would cause inconvenience to the petitioners to attend the Court at Jeypore and the second ground is that without hearing the petitioners, even on administrative grounds, the case should not have been transferred when the trial had already commenced. 8. 8. Coming to the second ground first, section 4(2) of the 1988 Act stipulates that every offence specified in subsection (1) of section 3 shall be tried by the Special Judge for the area within which it was committed, or, as the case may be, by the Special Judge appointed for the case, or, where there are more Special Judges than one for such area, by such one of them as may be specified in this behalf by the Central Government. In this case, there is no dispute that the offence was committed within the present jurisdiction of the learned Special Judge, Vigilance, Jeypore. It is also not disputed that when the F.I.R. was lodged, charge sheet was submitted, cognizance of offences was taken and the trial commenced, there was no competent Court at Jeypore vested with jurisdiction to deal with such matters and therefore, all such types of cases were being tried by the learned Special Judge, Vigilance, Berhampur. Once the Special Court, Vigilance, Jeypore was established, the learned Special Judge, Vigilance, Berhampur lost its jurisdiction to try the case as on the general principle, the Court at Berhampur does not ordinarily have extra territorial jurisdiction. Once a Special Judge was appointed at Jeypore, the cases from the Court of Special Judge, Vigilance, Berhampur are required to be transferred to the said Court of competent jurisdiction otherwise the very purpose of establishment of such Court at Jeypore and appointment of a Special Judge will get frustrated. The legislature has enacted the 1988 Act and provided for speedy trial of offences punishable under the said Act in the public interest. Considering the object and scheme of the Act and in the public interest, when the High Court decided to exercise its plenary administrative power after establishment of the Court of Special Judge, Vigilance, Jeypore to transfer the case from Berhampur to Jeypore without impinging upon or prejudicially affecting the rights and interests of the parties, I am of the view that it cannot be said that the impugned order passed on the direction of the High Court suffers from any illegality or infirmity rather the same would advance the cause of justice. Two of the co-accused persons who have been made as proforma opposite parties in this application have not challenged the order of transfer and therefore, it is presumed that they have no grievance. Two of the co-accused persons who have been made as proforma opposite parties in this application have not challenged the order of transfer and therefore, it is presumed that they have no grievance. There is nothing on the record to suggest that the petitioners will not get fair trial and may face miscarriage of justice. The ratio of the two decisions of this Court in Satyananda Pani’s case (supra) and Surendra Kumar Purohit’s case (supra) does not hold good in view of the ratio laid down by the Hon’ble Supreme Court in case of Kamlesh Kumar (supra). I am also of the view that when this Court was suo motu exercising its plenary administrative power and on the ground of territorial jurisdiction directing transfers of the case without impinging upon or prejudicially affecting the rights and interests of the parties, there was no requirement to hear the petitioners before exercise of such power. Therefore, even if the examination of the witnesses had already started, the learned Special Judge, Vigilance, Berhampur was quite justified in transferring the case to the Court of learned Special Judge, Vigilance, Jeypore in pursuance of the direction of the High Court. Therefore, the contention raised by the learned counsel for the petitioners that without hearing the petitioners, the case should not have been transferred even on administrative side is not acceptable and hence stands rejected. 9. Coming to the first ground regarding inconvenience of parties is concerned, no doubt as per the averments made in this application, the service place of petitioner no.1 is at Angul and petitioner no.3 is staying within the jurisdiction of Bolagarh Police Station in the district of Khurda but in my humble view, that cannot be a ground to retransfer the case from the Court of learned Special Judge, Vigilance, Jeypore to the Court of learned Special Judge, Vigilance, Berhampur. As rightly pointed out by the learned Addl. Standing Counsel for the Vigilance Department, the rest of the witnesses are not only from Berhampur but also from Nawarangpur, Papadahandi and Kalahandi and therefore, it will not be inconvenient for them to attend the Court at Jeypore. As rightly pointed out by the learned Addl. Standing Counsel for the Vigilance Department, the rest of the witnesses are not only from Berhampur but also from Nawarangpur, Papadahandi and Kalahandi and therefore, it will not be inconvenient for them to attend the Court at Jeypore. Though the section 407 of Cr.P.C. empowers the High Court to transfer a case from one criminal Court subordinate to its authority to any other such criminal Court of equal or superior jurisdiction on the ground of general convenience of the parties or witnesses or when it is felt expedient for the ends of justice, it cannot be said that this Court is required to take note of only the place of abode or the service place of the accused while making transfer of the cases in exercise its plenary administrative power. The petitioners may have a little inconvenience in attending the Court at Jeypore but the main criteria should be trial of a case in a Court within whose jurisdiction the offence was committed. The place of service as well as the place of abode of the parties may change from time to time but that cannot be a factor which would outweigh the jurisdictional point consideration in a criminal trial. The petitioners who are on bail can file appropriate application under section 317 of Cr.P.C. through their advocates before the learned Trial Court at Jeypore which shall be duly considered and their personal appearance can only be insisted upon by the learned Trial Court as and when it would be necessary. The petitioners shall give an undertaking before the Trial Court that they shall not claim any prejudice in case the evidence of the witnesses are taken up in their absence but in presence of their counsel. Therefore, the contention raised by the learned counsel for the petitioners that on the ground of inconvenience to the petitioners, the transfer order is illegal, is not acceptable and hence stands rejected. In view of the aforesaid discussion, I am not inclined to accept the prayer made by the petitioners and accordingly, the TRPCRL application stands dismissed.