ORISSA HIGH COURT : CUTTACK TRPCRL NO. 45 OF 2007 In the matter of an application under section 407 of the Code of Criminal Procedure, 1973. ------------- Rabindra Patra @ Rabindranath Patra …… Petitioner -Versus- Dipu Nayak and others …… Opp. Parties For Petitioner : M/s. D.P.Sarangi, N.C.Singh & P.C.Pattnaik. For Opp. Parties : M/s. Sambit S.Ray, A.K.Biswal & A.P.Rath. (For O.Ps 1 to 5) Addl. Standing Counsel (For O.P. 6 ) ------------------------- Decided on 19.08. 2010. -------------------------- P R E S E N T : THE HONOURABLE SHRI JUSTICE M. M. DAS ------------------------------------------------------------------------------------------ M.M. DAS, J. This application has been filed under section 407 of the Code of Criminal Procedure, 1973 (for short, ‘the Code’) seeking transfer of Sessions Case No. 32/23 of 2007 pending before the learned Ad hoc Additional Sessions Judge (FTC), Jagatsinghpur to any court of identical jurisdiction at Cuttack. 2. The petitioner has averred that he is a permanent resident of Cuttack town and carries on the work of motor mechanic having his garage at Pilgrim Road, Cuttack. Shri D.P. Parija, a practising Advocate of the Bar, who possesses an ambassador car gets his vehicle repaired in the petitioner’s garage since long and some times the petitioner accompanies Shri Parija as a driver of his vehicle. On 1.5.2001, while the petitioner and Shri Parija were proceeding to the village of Shri Parija, i.e., Kulasahi Tentuliapara, by the Cuttack – Paradip Road, to attend a marriage, in the car of Shri Parija, which was being driven by the petitioner, about 4 to 5 K.Ms before Raghunathpur, they found the road fully blocked by two buses standing parallel to each other. As such, they were compelled to stop the vehicle there for some time and on enquiry, they found that the said place is called village “Kantuara”. After some time, as one of the buses proceeded towards Cuttack, the road became free and the petitioner while proceeding towards Tirtol, along with Mr. Parija and one Akshay Pati, who was working as Sub-Registrar, Raghunathpur, on his request for a lift up to his office, it was learnt from Shri Pati that there was tension at Raghunathpur and the road was obstructed there by the local public because of the death of a person in a vehiclur accident. When Shri Pati got down from the vehicle near his office at Raghunathpur, the people who gathered there advised the petitioner to proceed to Tentuliapada via Tarikund, Jagatsinghpur and Jajpur and to avoid Raghunathpur bazaar as the people there have blocked the road and were not allowing any 2 vehicle to pass through the said road. Accepting such advice, while the petitioner turned the car towards Tarikund and was proceeding in that road, he could see in the car mirror that 8 to 10 persons armed with deadly weapons were chasing behind the car in three to four two-wheelers shouting at the top of their voice to stop the vehicle. Apprehending danger, while the petitioner was trying to escape by enhancing the speed of the vehicle, a person all of a sudden came to the middle of the road at village Birata- Katak and consequently the petitioner had to stop the vehicle. Immediately thereafter, the persons chasing them from behind encircled the car, dragged the petitioner and Shri Parija from the car and started assaulting them mercilessly without any reason. They also broke the wind shields of the car, damaged the body of the car, abused the petitioner and Shri Parija in filthy language and threatened to take away their lives. In the process, the petitioner was severely injured, his wearing apparels were torn and the hooligans snatched away Rs. 3000/- from his chest pocket. Fortunately, the local people rescued the petitioner and Shri Parija and took them to a nearby shop room and bolted the room from outside. Though the miscreants left the place, three to four of them waited at Tarikund ahead of the place of occurrence and did not allow the petitioner and Shri Parija to proceed towards Jagatsinghpur apprehending that they may lodge information in 3 Jagatsinghpur Police Station. Consequently, they had to return to Cuttack and lodged the F.I.R. at Chauliaganj Police Station at about 1.30 P.M. The F.I.R. was transferred by the Chauliaganj Police Station to the Jagatsinghpur Police Station on the point of jurisdiction and the police registered a case and after investigation, charge-sheeted five accused persons for the alleged commission of offence under sections 341/342/323/307/294/506/427/379/34 I.P.C. Consequently, the said accused persons have been committed to the Court of Session and after framing charges against them, the trial has since commenced before the learned Ad hoc Addl. Sessions Judge (F.T.C.) and two witnesses have been examined by the prosecution. 3. It is averred in this application for transfer of the case that the said two witnesses, who were eye witnesses to the occurrence, apprehending danger to their lives, since the accused persons are known criminals of the area, could not give their depositions freely supporting the prosecution case even though they gave such statements under section 161 Cr.P.C. before the Investigating Officer. They were, therefore, declared hostile. It is further averred that the rest of the prosecution witnesses including the petitioner and Shri Parija and the Doctor and the seizure witnesses belong to Cuttack town, who are required to 4 appear and adduce evidence in the case. The petitioner has learnt that the accused persons have made arrangements to assault the witnesses including the petitioner and Shri Parija, if they proceed to Jagatsinghpur to give their evidence. Apprehending danger to their lives, the petitioner has made this application for transfer of the Sessions Case. The petitioner previously filed TRPCRL No. 17 of 2007, but this Court did not entertain the said application as the petitioner did not move the learned Sessions Judge. The petitioner thereafter filed Tr.P.Criminal No. 1087 of 2007 before the learned Sessions Judge, Cuttack under section 408 Cr.P.C. for transfer of the Sessions Case to Cuttack. The learned Sessions Judge by order dated 12.9.2007 rejected the said application on the ground that he has no jurisdiction to transfer the case from Jagatsinghpur to Cuttack nor can direct stay of the proceeding, particularly when the trial has commenced. Hence, the petitioner has filed the present application under section 407 Cr.P.C. 4. Section 407 (1) (c) of the Code provides that whenever it is made to appear to the High Court that an order under this section is required by any provision of this Code or will tend to the general convenience of the parties or witnesses or is expedient for the ends of justice, this Court may order that any particular case or appeal or class of cases or appeals be 5 transferred from a criminal court subordinate to its authority to any other such criminal court of equal or superior jurisdiction. 5. Mr. Sarangi, learned counsel appearing for the petitioner urged that this is a fit case, where this Court should interfere in the matter and direct transfer of the Sessions Case from Jagatsinghpur to any court of equal jurisdiction at Cuttack as otherwise, the petitioner will be deprived from a fair trial. 6. Learned counsel for the opp. parties, on the other hand, contented that transfer of a case on the ground that there is danger to the life of the petitioner, if he is required to go to Jagatsinghpur, cannot be allowed and unless there is compelling circumstances, a case should not be transferred from one criminal court to another criminal court. Mere allegation that there is apprehension that fair trial cannot be conducted is not enough and even if such apprehension is held to be continuing, the petitioner may apply for adequate police protection for his safety. He relies upon the decision in the case of Parminder Kaur v. State of U.P. and another, (2007) 37 OCR (SC) 386 and the decision of this Court in the case of Sri Susanta Kumar Rout v. State of Orissa, 2005 (Supp.) OLR 171 in support of his contention. In the case of Parminder Kaur (supra), the Supreme Court was dealing with two transfer petitions under section 406 of 6 the Code. The facts in the said case reveal that the ground for transfer was ailment of the petitioner and her husband, who are aged persons and were not keeping good health and that they have got four daughters, but no son, who are abroad. The civil disputes were pending between the parties which were instituted by the petitioner and her husband after they received serious threats to their lives from the respondent no. 2 in the said case. On the above ground, criminal case filed by the respondent no. 2 against the petitioner was sought to be transferred. Taking various facts as pleaded in the said case, the Hon’ble Supreme Court took note of the fact that the plea of the petitioner is not supported by medical evidence and the petitioner has been travelling all the way from USA to India and going to Rampur to look after the landed property of her husband and the petitioner is a person of means. Comparing the convenience of both the litigants, the Supreme Court declined to transfer the criminal case. In the case of Sri Susant Kumar Rout (supra), this Court was dealing with an application for transfer. Referring to section 177 of the Code and holding that ordinarily an offence is to be enquired and tried before the court within the local jurisdiction of which it was committed, this Court held that unless there is compelling circumstances, a case should not be transferred from one criminal court to another. In the case of 7 Bulu @ Prasanna Kumar Panigrahi v. The State (1995) 9 OCR 32, this Court has held that the petitioner is entitled to a transfer of the case to some other court if he shows circumstances giving rise to inference that he entertains an apprehension and that it is reasonable on the circumstances alleged to transfer the case. 7. It is true that a mere allegation of apprehension that fair trial cannot be conducted in a particular case is not enough to order transfer of a criminal case. 8. In the case at hand, materials are found that the petitioner and Shri Parija, a senior member of the Bar were assaulted on the date of occurrence. Two witnesses already examined, who gave statement under section 161 Cr.P.C. before the I.O. regarding the occurrence as eye witnesses did not support such statement in court and were declared hostile. These circumstances are enough to infer that the apprehension expressed by the petitioner with regard to danger to his life if he proceeds to depose in the case as well as the statement made in the application that Shri Parija is not attending the Court at Jagatsinghpur on account of such apprehension are enough materials to invoke the jurisdiction of this Court under section 407 of the Code for directing transfer of the Sessions Case to a court of equal jurisdiction at Cuttack. Therefore, in the 8 circumstances of this case, this Court finds that an order of transferring the case is expedient for the ends of justice and directs that Sessions Case No. 32/23 of 2007 now pending before the learned Ad hoc Additional Sessions Judge (FTC), Jagatsinghpur be transferred to the court of the learned Sessions Judge, Cuttack, who shall proceed with the trial of the said case from the stage at which further proceedings in the Sessions Trial was stayed by this Court by an interim order passed in this case. For the above purpose, the Ad hoc Additional Sessions Judge (FTC), Jagatsinghpur shall remit the records of the aforesaid case to the court of the learned Sessions Judge, Cuttack, who on receiving the said records shall proceed with the Sessions Case in accordance with law. 9. The TRPCRL is accordingly allowed. ……………………… M.M. Das, J. Orissa High Court, Cuttack. August, 19th , 2010/Biswal. 9 10