The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK TRPCRL No.8 of 2023 Dhurba Charan Behera …. Petitioner Mr. Ashutosh Mishra, Advocate -versus- State of Odisha …. Opp. Party
Legal Reasoning
Mr. Suvasish Pattnaik, AGA CORAM: JUSTICE M.S. SAHOO Order No.
Decision
ORDER 24.03.2023 Hybrid Mode 1. 1. Heard Mr. A. Mishra, learned counsel for the petitioner and Mr.S. Pattnaik, learned Additional Government Advocate for the State-opposite party. 2. The petition has been filed seeking a transfer of T.R. Case No.4 of 2012 pending before the court of learned Additional Sessions Judge-cum-Judge Special Court, Deogarh to the court of learned Sessions Judge, Deogarh for early disposal of T.R. Case No.4 of 2012. 3. It is contended by the learned Additional Government Advocate for the State that such provision is not available for intra- court transfer at the choice of the petitioner. 4. The submissions of learned counsel for the petitioner centers around the “inconvenience/difficulties” faced by the petitioner due to the trial continuing before the ASJ-cum-Judge Special Court as averred in paragraphs 6 & 7 of the petition which are reproduced herein: “6. That it is humbly submitted that the learned Additional Sessions Judge-cum-Judge Spl. Court, Deogarh was not available for a long // 2 // time. Now the Court is not functioning since the P.O. is under training for few months for that reason the petitioner has approached before this Hon’ble Court for seeking transfer from the learned Additional Sessions Judge-cum-Judge Spl. Court, Deogarh to learned Sessions Judge, Deogarh for early disposal of the T.R. Case No.04/2012, though this Hon’ble court has directed the said case to be disposed of expeditiously. However in the meantime four years has been elapsed instead of four months from the date of order dated 18.01.2019. That the petitioner further humbly submitted that now the 7. petitioner is aged about 59 years and only one year to be superannuation from his service. If the trial is going long years together then the petitioner shall suffer irreparable loss in his entire service period. The petitioner’s departmental proceeding is pending before this Hon’ble court and this Hon’ble court has also awaited the outcome of the learned trial court case for disposal of the said proceeding.” 4.1. Learned counsel for the petitioner refers to Section 409 of Cr. P.C. submits that the High Court can transfer the matter in view of the fact that after the trial has been commenced, the Sessions Judge does not have the power to transfer the matter. Section 409 of Cr.P.C. provides: “409. Withdrawal of cases and appeals by Sessions Judges. (1) A Sessions Judge may withdraw any case or appeal from, or recall any case or appeal which he has made over to, any Assistant Sessions Judge or Chief Judicial Magistrate subordinate to him. (2) At any time before the trial of the case or the hearing of the appeal has commenced before the Additional Sessions Judge, a Sessions Judge may recall any case or appeal which he has made over to any Additional Sessions Judge. (3) Where a Sessions Judge withdraws or recalls a case or appeal under sub- section (1) or sub- section (2), he may either try the case in his own Court or hear the appeal himself, or make it over in accordance with the provisions of this Code to another Court for trial or hearing, as the case may be.” 5. Hon’ble Supreme Court in Nahar Singh Yadav and another –vs.-Union of India and Others; (2011) 1 SCC 307, dealt with the provisions of Section 406 (2) Cr.P.C. which can be profitably referred to here (Paragraphs-21, 22 , 24, 25, 29 and 31 of SCC) “21. Reverting to the main issue, a true and fair trial is sine qua Page 2 of 5 // 3 // non of Article 21 of the Constitution, which declares that : “21. Protection of life and personal liberty- No person shall be deprived of his "life" or "personal liberty" except according to the procedure established by law.” It needs no emphasis that a criminal trial, which may result in depriving a person of not only his personal liberty but also his life has to be unbiased, and without any prejudice for or against the accused. An impartial and uninfluenced trial is the fundamental requirement of a fair trial, the first and the foremost imperative of the criminal justice delivery system. If a criminal trial is not free and fair, the criminal justice system would undoubtedly be at stake, eroding the confidence of a common man in the system, which would not augur well for the society at large. Therefore, as and when it is shown that the public confidence in the fairness of a particular trial is likely to be seriously undermined, for any reason whatsoever, Section 406 of the Cr.P.C. empowers this Court to transfer any case or appeal from one High Court to another High Court or from one criminal court subordinate to one High Court to another criminal court of equal or superior jurisdiction subordinate to another High Court, to meet the ends of justice. 22. It is, however, the trite law that power under Section 406 of the Cr.P.C. has to be construed strictly and is to be exercised sparingly and with great circumspection. It needs little emphasis that a prayer for transfer should be allowed only when there is a well- substantiated apprehension that justice will not be dispensed impartially, objectively and without any bias. In the absence of any material demonstrating such apprehension, this Court will not entertain application for transfer of a trial, as any transfer of trial from one State to another implicitly reflects upon the credibility of not only the entire State judiciary but also the prosecuting agency, which would include the public prosecutors as well. xxx xxx xxx 24. In Maneka Sanjay Gandhi & Anr. Vs. Rani Jethmalani3, speaking for a bench of three learned Judges of this Court, V.R. Krishna Iyer, J. said: "Assurance of a fair trial is the first imperative of the dispensation of justice and 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 imperilling, from the point of view of public justice and its attendant environment, is necessitous if the Court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. We have to test the petitioner's grounds on this touchstone bearing in mind the rule that normally the complainant has the right to choose any court having jurisdiction and the accused cannot dictate where the case against him should be tried. Even so, the process of justice should not harass the parties and from that angle the court may weigh the circumstances." 25. In Abdul Nazar Madani Vs. State of T.N. & Anr. dealing with a Page 3 of 5 // 4 // xxx the parties does not necessarily mean similar application, this Court had echoed the following views: (SCC pp.210-11, para-7) "7. ... The apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary, based upon conjectures and surmises. If it appears that the dispensation of criminal justice is not possible impartially and objectively and without any bias, before any court or even at any place, the (1979) 4 SCC 167 (2000) 6 SCC 204 appropriate court may transfer the case to another court where it feels that holding of fair and proper trial is conducive. No universal or hard and fast rules can be prescribed for deciding a transfer petition which has always to be decided on the basis of the facts of each case. Convenience of the parties including the witnesses to be produced at the trial is also a relevant consideration for deciding the transfer petition. The convenience of the convenience of the petitioners alone who approached 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." xxx xxx 29.Thus, although no rigid and inflexible rule or test could be laid down to decide whether or not power under Section 406 of the Cr.P.C. should be exercised, it is manifest from a bare reading of sub-sections (2) and (3) of the said Section and on an analysis of the decisions of this Court that an order of transfer of trial is not to be passed as a matter of routine or merely because an interested party has expressed some apprehension about the proper conduct of a trial. This power has to be exercised cautiously and in exceptional situations, where it becomes necessary to do so to provide credibility to the trial. Some of the broad factors which could be kept in mind while considering an application for transfer of the trial are:- (i) when it appears that the State machinery or prosecution is acting hand in glove with the accused, and there is likelihood of miscarriage of justice due to the lackadaisical attitude of the prosecution; (ii) when there is material to show that the accused may influence the prosecution witnesses or cause physical harm the complainant; (iii) comparative inconvenience and hardships likely to be caused to the accused, the complainant/the prosecution and the witnesses, besides the burden to be borne by the State Exchequer in making payment of travelling and other expenses of the official and non- official witnesses; (iv) a communally surcharged atmosphere, indicating some proof of inability of holding fair and impartial trial because of the accusations made and the nature of the crime committed by the accused; and (v) existence of some material from which it can be inferred that the some persons are so hostile that they are interfering or are likely to interfere either directly or indirectly with the course of to Page 4 of 5 // 5 // xxx xxx justice. xxx 31. As regards the plea that the Court of Special Judge, CBI, Ghaziabad is already heavily over-burdened, in our opinion, that is again not a ground for transfer of trial. If at all the said Court is over burdened, it will be open to the High Court to request the State Government to create another Court of a Special Judge at Ghaziabad and we are confident that having regard to the nature of the case and the serious concern already shown by the State Government by issuing Notification dated 10th September 2008 promptly and expeditiously, the State Government will take appropriate steps in that behalf so that the guilty are brought to book at the earliest not only in this case but in other sensitive trials, stated to be pending in that Court, as well. ” [Emphasis Supplied] 6. On perusal of the pleadings made in the petition, applying the principles laid down in Nahar Singh Yadav (supra) this Court is not satisfied that any case is made out to transfer T.R. Case No.4 of 2012 from the court of learned Additional Sessions Judge- cum-Judge Special Court, Deogarh to the court of learned Sessions Judge, Deogarh. 7. Accordingly, the TRPCRL is dismissed. Judge (M.S. Sahoo) jyostna Page 5 of 5