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2019 DIGILAW 216 (ORI)

Jyotirmayee Gurahandi v. State Of Odisha

2019-03-14

S.K.SAHOO

body2019
JUDGMENT S K. Sahoo, J. - Heard Mr. Bijaya Kumar Ragada, learned counsel for the petitioner and Mr. Trilochan Nanda, learned counsel for the opposite parties nos. 2 to 6. 2. In this application under section 407 of Cr.P.C., 1973 the petitioner Smt. Jyotirmayee Gurahandi has sought for transfer of G.R. Case No.85 of 2013 pending before the learned S.D.J.M., Bolangir to the Court of learned S.D.J.M., Bargarh. 3. The petitioner is the wife of the opposite party no.2 Debananda @ Joytin Gurahandi. The petitioner lodged a first information report on 01.02.2013 before the Inspector in charge of Sadar police station, Bolangir on the basis of which Bolangir Sadar P.S. Case No.21 of 2013 was registered under sections 498A/506/34 of the Indian Penal Code and section 4 of the Dowry Prohibition Act which corresponds to G.R. Case No. 85 of 2013 pending in the Court of learned S.D.J.M., Bolangir. In the said case, after completion of investigation, charge sheet was submitted on 07.05.2013 against the opp. parties nos.2 to 6 under sections 498A/506/34 of the Indian Penal Code and section 4 of the Dowry Prohibition Act. 4. It is contended by the learned counsel for the petitioner that after the matrimonial dispute, the petitioner is now staying at her father's place at Ekambra Chhak in the district of Bargarh. The opp. parties no.2 to 6 are staying at Bolangir. The opp. party no.2 is a rowdy person and there is every possibility that he would threaten the petitioner if she goes to Bolangir and try to tamper with the prosecution evidence by gaining over the witnesses and there is also every possibility that the opposite party no.2 would put undue influence on every lawyer for which the petitioner cannot get justice, if the trial of the case proceeds at Bolangir. It is further submitted that there is reasonable apprehension to the life of the petitioner at Bolangir and it would be too difficult to her part to travel from Bargarh to Bolangir to attend the Court on each date and it is also not possible on the part of her family members to accompany her to attend the Court at Bolangir as because her father is not in a position to accompany her. Therefore, for the sake of convenience of the petitioner, G.R. Case no.85 of 2013 be transferred from the Court of learned S.D.J.M., Bolangir to the Court of learned S.D.J.M., Bargarh. Reliance was placed on the case of Sumita Singh vs. Kumar Sanjay reported in A.I.R. 2002 Supreme Court 396 . 5. Learned counsel appearing for the opp. parties nos. 2 to 6 on the other hand contended that the grounds taken in the application for transfer are not valid grounds and in case of any apprehension to the life of the petitioner at Bolangir, she can very well approach the concerned police station, in the event of which necessary police protection can be provided to her and her witnesses. It is further argued that since in the Magistrate's Court, the Public Prosecutor or Asst. Public Prosecutor is supposed to conduct the case on behalf of the State, it is very difficult to accept that the opp. party no.2 husband who is a cultivator would put undue influence on every lawyer for which the petitioner would not get justice in the Court at Bolangir. It is further submitted that the merely because the petitioner-wife is residing at Bargarh in her father's place, it cannot be ground for transferring the case from Bolangir to Bargarh inasmuch as the cause of action arose within the local jurisdiction of the Court of S.D.J.M., Bolangir and most of the witnesses are also from Bolangir and the convenience of the accused persons are paramount consideration which cannot be overlooked. He placed reliance in the cases of Smt. Sankura Parvati vs. State reported in, (1998) 14 Orissa Criminal Reports 588 , Kuna @ Dalagobinda Mohanty vs. Bulu @ Jaya Gobinda Mohanty reported in, (1998) 14 Orissa Criminal Reports 409 , Bulu @ Prasanta Kumar Panigrahi vs. The State reported in, (1995) 9 Orissa Criminal Reports 32 and State vs. Mirza Asraf Alli Baig reported in, 2005 1 Orissa Law Reviews 495 . 6. In case of Smt. Sankura Parvati vs. State reported in (1998) 14 Orissa Criminal Reports 588 , it is held that in case of transfer of a case, not only interest of the complainant but also the interest of the accused has to be looked into. 6. In case of Smt. Sankura Parvati vs. State reported in (1998) 14 Orissa Criminal Reports 588 , it is held that in case of transfer of a case, not only interest of the complainant but also the interest of the accused has to be looked into. There is general consensus of judicial opinion that in matters of transfer, greater emphasis is to be led on the convenience of the accused rather than of the prosecutor. 7. In case of Kuna @ Dalagobinda Mohanty vs. Bulu @ Jaya Gobinda Mohanty reported in, (1998) 14 Orissa Criminal Reports 409 , it is held that according to criminal jurisprudence and the provisions in the Code, trial of an offence normally should be held in that criminal Court within whose local limits, the offence was committed. Exercise of the power under section 407 Cr.P.C., 1973 is to make an exception to the said provisions. It is further held that mere apprehension in the mind of the petitioners without disclosing the basis, is not sufficient to allow them to chose their own forum of trial. 8. In case of Bulu @ Prasanta Kumar Panigrahi vs. The State reported in, (1995) 9 Orissa Criminal Reports 32 , it is held that the central criterion for the Court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini-grievances. Something more substantial, more compelling, more impelling, from the point of view of public justice and its attendant environment, is necessary if the Court is to exercise its power of transfer. The High Court will always require very strong ground for transferring a case from one judicial officer to another. A mere allegation, however, that there is apprehension that justice will not be done in a given case will not be enough. It has to be seen further whether the apprehension is reasonable and to judge this reasonableness, the state of mind of the person concerned is relevant. 9. In case of State vs. Mirza Asraf Alli Baig reported in, (2005) 1 Orissa Law Reviews 495 , it is held that as per section 177 of Cr.P.C., 1973 ordinarily an offence is to be enquired into and tried before the Court within whose local jurisdiction it was committed. 9. In case of State vs. Mirza Asraf Alli Baig reported in, (2005) 1 Orissa Law Reviews 495 , it is held that as per section 177 of Cr.P.C., 1973 ordinarily an offence is to be enquired into and tried before the Court within whose local jurisdiction it was committed. In exceptional cases, as provided under section 407 of the Cr.P.C., 1973 a case can be transferred from one criminal Court to another. 10. The decision on which reliance was placed by the learned counsel for the petitioner is not applicable in this case as that was a case of husband's suit against the wife relating to matrimonial dispute and the Hon'ble Supreme Court held that the wife's convenience must be looked into. 11. There is no dispute that the present criminal case arises out of matrimonial dispute between the parties. It is also not disputed at the bar that at present the petitioner is residing at Bargarh at her father's place and her in-laws opp. parties are residing at Bolangir. It is also not disputed that the cause of action arose within the territorial jurisdiction of learned S.D.J.M., Bolangir and the alleged offences were committed while the petitioner was staying in her in-laws' house at Bolangir. On perusal of the charge sheet, it appears that out of fifteen charge sheet witnesses, apart from the petitioner, charge sheet witnesses nos.9, 10, 11, 12, 13 and 14 are from the Bargarh district whereas the charge sheet witnesses nos. 2 to 8 are from Bolangir district. 12. Except the bald apprehension that the opp. party no.2 would threaten the petitioner if she goes to Bolangir and try to tamper with the prosecution evidence by gaining over the witnesses, there is no cogent material like any previous overt act committed by the opp. party no.2 against either the petitioner or any of the prosecution witnesses to create any such apprehension in the mind of the petitioner. Similarly the contention of the learned counsel for the petitioner that there is every possibility that the opposite party no.2 would put undue influence on the lawyers at Bolangir for which the petitioner cannot be get justice if the trial of the case proceeds there, is a scandalous allegation against the members of the legal fraternity. 13. The legal profession has always been considered to be a noble profession. 13. The legal profession has always been considered to be a noble profession. The duty of a lawyer is to assist the Court in the administration of justice. The practice of law has a public utility flavour. A lawyer must strictly and scrupulously abide by the code of conduct behoving the noble profession. The legal profession is nothing without its ideals and ethics. It is expected that a member of the legal fraternity should not make any unwarranted comments or allow anyone to do so against another member or members of the fraternity in general forgetting his responsibility to keep the sanctity of the profession at the top. 14. In a criminal case, as per the section 177 of Cr.P.C., 1973 every offence shall ordinarily be enquired into or tried by a Court within whose local jurisdiction it was committed. On the basis of the averments made in the F.I.R. and other materials on record, it is apparent that the offences were committed within the local jurisdiction of the learned S.D.J.M., Bolangir. 15. Since no other case is pending between the parties either at Bargarh or Bolangir as stated by the learned counsel for the respective sides, merely because the petitioner is at present residing at her father's place at Bargarh, if the case is transferred on that ground to Bargarh for her convenience then it would cause inconvenience not only to the accused persons i.e. opp. parties nos. 2 to 6 but also to the prosecution witnesses who are residing at Bolangir. 16. Needless to say, if there would be any reasonable apprehension of threat from the side of the opp. party no.2 either to the petitioner or her witnesses or any such conduct of the opp. party no.2 creates any apprehension of danger to the life of the petitioner or her witnesses, they can very well approach the Inspector in charge of Bolangir Sadar police station who shall give due attention to their grievances and in case of necessity, provide adequate security to them so that they can give their evidence in the trial Court in a free and conducive atmosphere. 17. In view of the forgoing discussions, I am of the humble view that the grounds taken in this transfer application are not sufficient to grant any relief in favour of the petitioner. Accordingly, the TRPCRL application being devoid of merits, stands dismissed.