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2023 DIGILAW 289 (CHH)

Ravendra Kumar Namdeo v. State Of Chhattisgarh

2023-07-07

RAJANI DUBEY

body2023
ORDER : The present petition under Section 407 of the Code of Criminal Procedure (CrPC) has been filed for transfer of Session Trial No.71/2021, State of Chhattisgarh Vs. Nitin Limbu and others, from the Court of Second Additional Sessions Judge, Rajnandgaon to the Sessions Court at Bilaspur or any other Sessions Division. 2. The petitioner is the father of the deceased Shubham Namdev who was allegedly murdered on 10.9.2018. Respondents No. 9 to 11 herein are facing trial before the Court of Second Additional Sessions Judge, Rajnandgaon in Sessions Trial No.71/2021 for the offence punishable under Sections 302, 201, 120B, 193 of IPC and Sections 25 & 27 of the Arms Act. 3. Learned counsel for the petitioner submits that the accused persons are quite competent to get the witnesses change their evidence and are very influential and hardcore criminals. It is clear from the record of the trial Court that number of criminal cases are pending against them and they are a serious threat to the society. The State is bound to ensure protection of the victim and the witnesses. Fair trial is a part of right to life and personal liberty guaranteed under Article 21 of the Constitution of India. Without fair trial, the entire criminal justice system would be a failure. The accused persons are very much influential in the entire district of Rajnandgaon and adjacent ones, and ends of justice would meet if the trial is transferred from Sessions Division, Rajnandgaon to another Sessions Division. The affidavit and complaint made by Smt. Bharti Belchandan coupled with all the attending circumstances clearly explain that if the trial is allowed to continue at Sessions Division, Rajnandgaon, it would not be in the interest of justice and would just be an empty formality and a futility. He further submits that it is a matter of serious concern that persons in custody are able to threaten the victim and the witnesses and can get away from a serious criminal charge, which on the one hand, would amount to failure of justice and on the other, will lead to further and more heinous offence in future. Reliance has been placed on the decision of the Madras High Court in the matter of Chitra Vs. The Additional District Superintendent of Police, (2019) CriLJ 3639; Sarasamma @ Saraswathiyamma Vs. State Rep. Reliance has been placed on the decision of the Madras High Court in the matter of Chitra Vs. The Additional District Superintendent of Police, (2019) CriLJ 3639; Sarasamma @ Saraswathiyamma Vs. State Rep. By Deputy Superintendent of Police, (2018) AIR (SC) 2287; and Sesamma Phillip and Etc. Vs. P. Phillip and etc., (1973) AIR (SC) 875. 4. On the other hand, learned counsel for the respondents/State opposes the prayer made by the petitioner. 5. Learned counsel appearing for the respondents No. 9 to 11 strongly oppose the prayer of the petitioner and submitted that the respondents/accused persons are behind the bar since long and the Hon’ble Apex Court vide order dated 14.9.2022 has directed the trial Court to expedite the proceedings. The instant petition is filed on false and frivolous grounds. PW-7 Nikhil Sonwani was examined by the prosecution on 14.7.2022 and he supported the prosecution case. Thus, it is clear that the accused persons are not trying to influence the witnesses or threaten them. The petitioner has filed this petition on false and frivolous grounds with a view to linger on the case, therefore, it is liable to be dismissed with cost. Reliance has been placed on the decision of the Hon’ble Supreme Court in the matter of Swaati Nirkhi and others Vs. State (NCT of Delhi) and others, (2021) 11 SCC 163 . 6. Heard learned counsel for the parties and perused the material available on record. 7. The petitioner has filed this petition for transfer of the case on the ground that the respondents/accused persons are very influential and hardcore criminals and number of criminal cases are pending against them. They are pressurizing the petitioner and the witnesses in the case pending against them to turn hostile and support the defence in the trial. Copy of deposition of PW-3 is also filed by the petitioner with this petition. 8. Section 177 of CrPC which relates to the place of inquiry and trial, reads as under: “177. Ordinary place of inquiry and trial. - Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed.” It is clear from all the documents that the cause of action arose within the local jurisdiction of Rajnandgaon. The Hon’ble Supreme Court in the matter of Swaati Nirkhi (supra) held in paras 19 & 20 as under: “19. - Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed.” It is clear from all the documents that the cause of action arose within the local jurisdiction of Rajnandgaon. The Hon’ble Supreme Court in the matter of Swaati Nirkhi (supra) held in paras 19 & 20 as under: “19. The cause of action as per the averments in the FIR are alleged to have arisen in New Delhi, where the matrimonial home of the Petitioner is situated. This court has consistently held that a criminal case ought to be inquired and tried ordinarily where the cause of action has accrued (Ramesh Vs. State of T.N. (2005) 3 SCC 507 ). 20. In Y. Abraham Ajith V. State, (2004) 8 SCC 100 , this Court held that : (SCC pp. 105-06, paras 12-18) “12. The crucial question is whether any part of the cause of action arose within the jurisdiction of the court concerned. In terms of Section 177 of the Code, it is the place where the offence was committed. In essence it is the cause of action for initiation of the proceedings against the accused. 13. While in civil cases, normally the expression “cause of action” is used, in criminal cases as stated in Section 177 of the Code, reference is to the local jurisdiction where the offence is committed. These variations in etymological expression do not really make the position different. The expression “cause of action” is, therefore, not a stranger to criminal cases. 14. It is settled law that cause of action consists of a bundle of facts, which give cause to enforce the legal inquiry for redress in a court of law. In other words, it is a bundle of facts, which taken with the law applicable to them, gives the allegedly affected party a right to claim relief against the opponent. It must include some act done by the latter since in the absence of such an act no cause of action would possibly accrue or would arise. 15. The expression “cause of action” has acquired a judicially settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. 15. The expression “cause of action” has acquired a judicially settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the proceeding including not only the alleged infraction, but also the infraction coupled with the right itself. Compendiously, the expression means every fact, which it would be necessary for the complainant to prove, if traversed, in order to support his right or grievance to the judgment of the court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove such fact, comprises in “cause of action”. 16. The expression “cause of action” has sometimes been employed to convey the restricted idea of facts or circumstances which constitute either the infringement or the basis of a right and no more. In a wider and more comprehensive sense, it has been used to denote the whole bundle of material facts. 17. The expression “cause of action” is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a court or a tribunal; a group of operative facts giving rise to one or more bases for sitting; a factual situation that entitles one person to obtain a remedy in court from another person. In Black's Law Dictionary a “cause of action” is stated to be the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which, if traversed, the plaintiff must prove in order to obtain judgment. In Words and Phrases (4th Edn.), the meaning attributed to the phrase “cause of action” in common legal parlance is existence of those facts, which give a party a right to judicial interference on his behalf. 18. In Halsbury's Laws of England (4th Edn.) it has been stated as follows: “‘Cause of action’ has been defined as meaning simply a factual situation, the existence of which entitles one person to obtain from the court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. ‘Cause of action’ has also been taken to mean that a particular act on the part of the defendant which gives the plaintiff his cause of complaint, or the subject-matter of grievance founding the action, not merely the technical cause of action.” 9. In the present case also, all the prosecution witnesses are situated in Rajnandgaon. It is also admitted by both the parties that the respondents/accused persons are confined in jail. In these circumstances, it is inconvenient for the witnesses to appear in the trial if it is transferred to another sessions division. True it is that it is the duty of the district administration to protect the witnesses/victim from any threat or pressure for concealing the truth. The judgments relied upon by counsel for the petitioner being distinguishable on facts are of no help to him. 10. Thus, regard being had to the overall facts and circumstances of the case and the observations made by the Hon’ble Supreme Court in the matter of Swaati Nirkhi (supra), this Court finds no substance in the present petition for transfer of the trial to another sessions division. Accordingly, the instant petition being without any merit is hereby dismissed. Considering the apprehension of the petitioner that the respondents/accused being influential persons can threaten or intimidate the witnesses, the Superintendent of Police, Rajnandgaon is directed to depute one police officer, not below the rank of Dy. Superintendent of Police, to ensure safety of the prosecution witnesses while appearing in the Court for recording of evidence. The officer so deputed shall be informed by the concerned public prosecutor about the date of appearance of the witnesses well in advance. The concerned Jail Superintendent is also directed to ensure that the accused persons do not extend any threat to the witnesses in any manner or do not act in any manner which will be prejudicial to the fair and expeditious trial. If any complaint is made to the police regarding any threat to the witnesses, immediate action be taken against the concerned persons in accordance with law. If any complaint is made to the police regarding any threat to the witnesses, immediate action be taken against the concerned persons in accordance with law. Further, in view of the order of the Hon’ble Apex Court dated 14.9.2022, the trial Court is directed to expedite the trial and conclude the same as early as possible in accordance with law.