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2017 DIGILAW 270 (ORI)

Gyan Prakash Agarwal v. State of Orissa

2017-03-15

S.K.SAHOO

body2017
JUDGMENT : S. K. SAHOO, J. 1. Heard Mr. Sudhansu Sekhar Panda, learned counsel for the petitioners and Mr. Dilip Kumar Misra, learned counsel for the State. 2. This transfer application under section 407 of Cr.P.C. has been filed by the petitioners Gyan Prakash Agarwal and Swatantra Kumar Agarwal for analogous hearing of S.T. Case No.145 of 2014 pending before the learned Presiding Officer, Special Court, Cuttack and G.R. Case No.217 of 2011 pending in the Court of learned J.M.F.C., Salipur. 3. The occurrence in question took place on 07.04.2011 in the afternoon. In connection with the occurrence, opposite party no.2 Golakh Chandra Sethy lodged a first information report before the Inspector in charge, Jagatpur Police Station, on the basis of which Jagatpur P.S. Case No.47 of 2011 was instituted on 08.04.2011 and after completion of investigation, charge sheet was submitted on 23.09.2011 under sections 341, 323, 294, 506 and 34 of the Indian Penal Code and section 3 (1) (x) of the S.C. & S.T. (P.A) Act against the petitioners which corresponds to S.T. Case No.145 of 2014 pending before the Presiding Officer, Special Court, Cuttack. Similarly in connection with the very occurrence, petitioner no.1 Gyan Prakash Agarwal lodged the F.I.R. on 08.04.2011, on the basis of which Jagatpur P.S. Case No.48 of 2011 was instituted and on completion of investigation, charge sheet was submitted under sections 341, 294, 323, 325, 506 and 34 of the Indian Penal Code against the opposite party No.2 and others which corresponds to G.R. Case No.217 of 2011 pending in the Court of learned J.M.F.C., Salipur. 4. Learned counsel for the petitioners contended that the two cases are case and counter case and law is well settled that the case and counter case are to be tried one after the other by the same Court and separate judgments are to be pronounced simultaneously. 4. Learned counsel for the petitioners contended that the two cases are case and counter case and law is well settled that the case and counter case are to be tried one after the other by the same Court and separate judgments are to be pronounced simultaneously. It is further contended that though the transfer petition under section 408 Cr.P.C. was filed before the Sessions Judge, Cuttack vide TRP (Criminal) No.05 of 2016 seeking transfer of G.R. Case No.217 of 2011 to be tried along with S.T. Case No.145 of 2014 but the learned Sessions Judge, Cuttack vide impugned order dated 25.11.2016 has illegally rejected the transfer petition mainly on the ground that the S.T. case is at the fag end of the trial and there will be inordinate delay, if the other case records i.e., G.R. Case No.217 of 2011 is ordered to be tried along with S.T. Case No.145 of 2014. However, the learned Sessions Judge gave liberty to the petitioner no.1 to quote his F.I.R. and accusations in the G.R. Case in his defence in the S.T. case. 5. Learned counsel for the petitioners filed the certified copy of the orders dated 02.02.2017 and 13.02.2017 of the Presiding Officer, Special Court, Cuttack in S.T. Case No.145 of 2014 which indicates that the case is posted for defence evidence. He has also filed the certified copy of the order sheets of the learned J.M.F.C., Salipur in G.R. Case No.217 of 2011, which indicates that the case is posted to 29.06.2017 for supply of police papers to the accused persons. Learned counsel for the petitioner placed a decision of this Court in the case of Danda Naik and others -Vrs-State of Orissa reported in (2007) 38 OCR 390, wherein it is indicated that the case and counter case should be tried together by the same Judge for the ends of justice. Learned Sessions Judge while passing the impugned order has observed that the cases seem to be counter to each other but the transfer petition was filed at a belated stage and therefore, the learned Sessions Judge, Cuttack was not inclined to accept the prayer for transfer. 6. Learned Sessions Judge while passing the impugned order has observed that the cases seem to be counter to each other but the transfer petition was filed at a belated stage and therefore, the learned Sessions Judge, Cuttack was not inclined to accept the prayer for transfer. 6. Perused the order sheet filed today by the learned counsel for the petitioner in G.R. Case No.217 of 2011 which indicates that on receipt of the charge sheet, cognizance of offences under sections 341, 294, 323, 325, 506 and 34 of the Indian Penal Code was taken on 01.08.2011. It appears that in the G.R. Case No.216 of 2011 out of which S.T. Case No.145 of 2014 arises, charge sheet was submitted on 23.09.2011 under sections 341, 323, 294, 506 and 34 of the Indian Penal Code and section 3 (1)(x) of S.C. & S.T. (P.A.) Act and the case was committed to the Court of Session in the year 2014. No steps were taken earlier by the petitioners before the learned J.M.F.C., Salipur by filing appropriate application under section 323 of Cr.P.C. in G.R. Case No.217 of 2011 to commit the case to the Court of Session to be tried along with S.T. Case No.145 of 2014. 7. The Magistrate has got power under section 323 of Cr.P.C. to commit a case to the Court of Session even though sessions triable offence is not there, if the counter case is triable by Court of Session. Moreover, charge sheet has been submitted in G.R. Case No.217 of 2011 for non-sesions triable offences and therefore, power of transfer lies with the High Court only under section 407 (1)(c)(iii) of Cr.P.C. as the Magistrate has to be directed to commit a non-sessions triable case to the Court of Session to be tried along with a sessions triable case as case and counter case by the same Judge. Such power being not available with the Sessions Judge under section 408 of Cr.P.C., there was no justification for the petitioner no.1 to file a transfer petition before the learned Sessions Judge, Cuttack. 8. Such power being not available with the Sessions Judge under section 408 of Cr.P.C., there was no justification for the petitioner no.1 to file a transfer petition before the learned Sessions Judge, Cuttack. 8. When the case before the Presiding Officer, Special Court, Cuttack is posted for defence evidence and the petitioners can substantiate their defence plea by obtaining and proving the documents which are available in G.R. Case No.217 of 2011 on production of certified copies and/or examining witnesses in support of the defence plea and the petitioners will not be prejudicied in any manner, I am unable to accept the contention raised by the learned counsel for the petitioners to direct for analogous trial of both the cases i.e., G.R. Case No.217 of 2011 pending in the Court of learned J.M.F.C., Salipur along with S.T. Case No.145 of 2014 pending before the Presiding Officer, Special Court, Cuttack. 9. It is made clear that the petitioners shall be given every opportunity before the learned Special Court in S.T. Case No.145 of 2014 to adduce their defence evidence and also proving the documents which are available in G.R. Case No.217 of 2011 pending in the Court of learned J.M.F.C., Salipur. 10. With the aforesaid observation, the transfer petition is disposed of. 11. Urgent certified copy of this order be granted on proper application.