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2018 DIGILAW 704 (ORI)

P. Srichandan v. State of Odisha

2018-07-31

J.P.DAS

body2018
JUDGMENT J.P.DAS, J. - This application has been filed by the petitioner with a prayer to transfer S.T. Case No.222/149 of 2015-17 corresponding to Rengali P.S.Case No.130 dated 15.09.2015 from the Court of learned Second Additional Sessions Judge-cum-Special Judge, Sambalpur, to any other Court outside the undivided district of Sambalpur namely, Sambalpur, Jharsuguda, Deogarh, Kuchinda and Bargarh. 2. The petitioner is the accused in the case facing trial for the offences punishable under Section 376 (2) (i) of the I.P.C. and Section 6 of the POCSO Act. 3. It has been submitted on behalf of the petitioner that he is a practicing advocate in the Sambalpur Bar Association. Due to some personal rivalry, he has been falsely implicated in this case with concocted allegations without any material evidence against him. He alleged that an application was filed by him before the learned trial Court to discharge from the offences along with another application calling for certain documents from the Police Station. He alleged that both the applications were hurriedly disposed of by the then Presiding Officer of the Court without giving opportunity of hearing to the learned Counsel for the petitioner. The petitioner assailed the said order before this Court in Criminal Misc. Case No.1862 of 2018, which was disposed of by order dated 25.06.2018 with a direction to the learned trial Court to re-consider and dispose of the application filed by the petitioner afresh by affording reasonable opportunity of hearing to the petitioner as well as to Special Public Prosecutor. It has been submitted that despite the intimation to the learned trial Court that such an order has been passed by this Court and some delay in obtaining the certified copy of the order of this Court, the learned trial Court with a vindictive attitude did not grant time to the petitioner and on 02.07.2018 despite an application filed by the counsel for the petitioner under Section 317 of the Cr.P.C. seeking time to produce the certified copy of the order of this Court, the learned trial Court rejected the application and directed for issuance of N.B.W. (A) against the accused. The counsel for the petitioner filed an application to recall the said order which was adjourned for consideration. In the meantime the Presiding Officer of the Court was transferred being succeeded by another Officer. The counsel for the petitioner filed an application to recall the said order which was adjourned for consideration. In the meantime the Presiding Officer of the Court was transferred being succeeded by another Officer. It is submitted that on 05.07.2018 the petitioner was physically present in the court along with his counsel and produced the certified copy of the order of this Court. It has been submitted that the succeeding Presiding Officer in the Court being influenced by his predecessor, kept the order reserved till 09.07.2018, and on that date, rejecting the application of the petitioner, simultaneously started a proceeding against the bailer who was none other than the wife of the petitioner-accused. 4. It was submitted by the learned counsel for the petitioner that the Presiding Officer of the said Court being vindictive towards the petitioner for reasons unknown, has passed the aforesaid order to put the petitioner to harassment and humiliation. It was also submitted that due to the circumstances, the petitioner along with his family has left Rengali and is staying at Kanas in the district of Puri. Submitting that all the orders passed by the learned trial Court are products of inherent malafides and extraneous consideration causing serious prejudice to the petitioner, it has been prayed to transfer the proceeding to any court outside the jurisdiction of the undivided Sambalpur Judgeship. 5. Learned Counsel on behalf of the State submitted that the allegations and the apprehensions as expressed on behalf of the petitioner, are absolutely baseless and imaginary. It cannot be believed that successive Senior Judicial Officers would carry any personal grudge against the petitioner. It was also submitted that there was absolutely no illegality in the orders passed by the learned trial Court since time was granted to the petitioner to produce the certified copy of the order of this Court and despite direction for personal attendance of the accused, his petition seeking further time through the counsel was rightly rejected and N.B.W. (A) was issued. 6. Transfer of a case from the jurisdiction of one court to that of another, is not a routine matter. Such a prayer should not be allowed unless there exists sufficient grounds and reasons for such action. Peculiarly, in this case, the petitioner alleges personal vindictiveness against the Presiding Officer, that too two successive Presiding Officers, only because some adverse orders were passed against him. Such a prayer should not be allowed unless there exists sufficient grounds and reasons for such action. Peculiarly, in this case, the petitioner alleges personal vindictiveness against the Presiding Officer, that too two successive Presiding Officers, only because some adverse orders were passed against him. As submitted on behalf of the State, and as seen from the copies of the order-sheet placed on behalf of the petitioner, adjournments have been granted to the petitioner for production of the certified copy of the order of this Court and rejecting his application under Section 317 Cr.P.C. N.B.W. (A) has been issued. Placing a copy of one hazira, it was submitted by the learned counsel for the petitioner that the petitioner had signed on the said application and hence he was physically present in the Court. But, if the petitioner was physically present in the court, there could not have been any necessity of filing of application under Section 317 of the Cr.P.C. Starting a Misc. Case against the bailor is the legal procedure when the accused remains absent in the court and the bail bonds become liable for forfeiture. Thus, I do not find any illegality or perversity in the orders so as to presume that the Presiding Officers of the Court had any personal vendetta against the petitioner. In this context, I feel it profitable to quote the observation of the Hon’ble Apex Court as reported in (2018) 6 SCC 358 (Harita Sunil Parab versus State (NCT OF DELHI) and others) and (Harita Sunil Parab Versus Railway Protection Force, Ratlam and another). “The apprehension of not getting a fair and impartial enquiry or trial is required to be reasonable and not imaginary, based upon conjectures and surmises. No universal or hard- and fast rule can be prescribed for deciding a transfer petition, which will always have to be decided on the facts of each case. Convenience of a party may be one of the relevant considerations but cannot override all other considerations such as the availability of witnesses exclusively at the original place, making it virtually impossible to continue with the trial at the place of transfer, and progress of which would naturally be impeded for that reason at the transferred place of trial. The convenience of the parties does not mean the convenience of the petitioner alone who approaches the court on misconceived notions of apprehension. The convenience of the parties does not mean the convenience of the petitioner alone who approaches the court on misconceived notions of apprehension. Convenience for the purposes of transfer means the convenience of the prosecution, other accused, the witnesses and the larger interest of the society”. In the instant case, the victim is a child and the other witnesses are local persons. In such circumstances taken together with the positions of law, I do not find any merit in the present application to transfer the case from the court wherein it is pending now. Accordingly, this applications stands rejected. 7. However, it is directed that the petitioner is given liberty to surrender before the learned trial Court within a fortnight hence and on such event, the learned trial Court shall do well to recall the N.B.W.(A) and to allow the petitioner to continue on his previous bail, and proceed with the trial of the case according to law. The N.B.W. (A) issued against the petitioner shall not be executed till a fortnight hence. The application is disposed of accordingly. Application disposed of.