Opposite Party v. Advocates appeared in this case through Hybrid Mode
Case Details
// 1 // IN THE HIGH COURT OF ORISSA AT CUTTACK TRPCRL No. 66 of 2022 An application under Section – 407 Cr.P.C. for transfer of G.R. No. 107 of 2013 (V) from the Court of the learned Special Judge (Vigilance), Phulbani to the Court of learned Special Judge (Vigilance), Berhampur. 1. Bhagaban Sahu 2. Surabhi Kumari Sahu …. Petitioners State of Odisha (Vigilance) …. Opposite Party Versus Advocates appeared in this case through Hybrid Mode : For Petitioners : Mr. P.K. Nanda, Advocate For Opp. Party : Mrs. Jyotshna Tripathy, A.S.C. (For Vigilance) CORAM: JUSTICE SAVITRI RATHO .……………………………………………………………………… Date of Judgment : 03.03.2023 ……………………………………………………………………….. Savitri Ratho, J. 1. This application under Section 407 of the Cr.P.C. has been filed by the petitioners who are the accused in G.R. Case No.107 of 2013 (V) arising out of Berhampur Vigilance P.S. Case No.32 of 2012, for transfer of the case from the Court of learned Special Judge (Vigilance), Phulbani to the Court of the learned Special Judge (Vigilance), Berhampur, District-Ganjam. The petitioners who are TRPCRL No. 66 of 2022 Page 1 of 25 // 2 // husband and wife are facing trial in the aforesaid case where charge sheet has been filed against them for commission of offences punishable under Section 13(2) r/w Section 13 (1) (e) of the Prevention of Corruption Act, 1988 r/w Section 109 of the Indian Penal Code. 2. While the petitioner was working as Junior Engineer, Irrigation Investigation Sub-Division, Phulbani, District-Kandhamal, Berhampur Vigilance P.S. Case No. 32 of 2012 had been registered against him for commission of offences punishable under Section 13 (2) read with Section 13 (1) (e) of the Prevention of Corruption Act, for the period 12.11.1983 to 10.01.2012 . After investigation, it was found that Petitioner No.1 while posted at Padmapur, Nawarangpur, Chakapada, Khajuripada, Kaptipada and Phulbani had acquired assets disproportionate to the known sources of his income to the tune of Rs.15,43,766.01 (about 38% of his income) during period of his service from 12.11.1983 to 10.01.2012 which he could not explain satisfactorily. Petitioner no.2, his wife was found to have abetted the commission of the offences. Chargesheet dated 10.08.2021 was submitted against petitioner no.1 under Section 13 (2) read with Section 13 (1) (e) of the P.C. Act and against Petitioner No.2 under TRPCRL No. 66 of 2022 Page 2 of 25 // 3 // Section 13 (2) read with Section 13(1) (e) of the P.C. Act / 109 of I.P.C. 3. Learned counsel for the petitioners has submitted that the case was initially pending in the Court of the learned Special Judge Vigilance Berhampur and after establishment of the Court of the Special Judge at Phulbani, it has been transferred there. He has also submitted that the petitioners are staying in Berhampur and and their movable properties are situated in Berhampur and petitioner no.1 is due to retire in 2024. Petitioner No.2 is suffering from L.S Spine and undergoing treatment at AIIMS, Bhubaneswar, for which it would be difficult for her to travel to Phulbani. Petitioner No.1 is also under treatment at AIIMS Bhubaneswar. Distance between Berhampur and
Legal Reasoning
of the two decisions of this Court in Satyananda Pani's case (supra) and Surendra Kumar Purohit's case (supra) does not hold good in view of the ratio laid down by the Hon'ble Supreme Court in case of Kamlesh Kumar (supra). I am also of the view that when this Court was suo motu exercising its plenary administrative power and on the ground of territorial jurisdiction directing transfers of the case without impinging upon or prejudicially affecting the rights and interests of the parties, there was no requirement to hear the petitioners before exercise of such power”….. “9. Coming to the first ground regarding inconvenience of parties is concerned, no doubt as per the averments made in this application, the service place of petitioner no.1 is at Angul and petitioner no.3 is staying within the jurisdiction of Bolagarh Police Station in the district of Khurda but in my humble view, that cannot be a ground to retransfer the case from the Court of learned Special Judge, Vigilance, Jeypore to the Court of learned Special Judge, Vigilance, Berhampur. As rightly pointed out by the learned Addl. TRPCRL No. 66 of 2022 Page 19 of 25 // 20 // Standing Counsel for the Vigilance Department, the rest of the witnesses are not only from Berhampur but also from Nawarangpur, Papadahandi and Kalahandi and therefore, it will not be inconvenient for them to attend the Court at Jeypore. Though the section 407 of Cr.P.C. empowers the High Court to transfer a case from one criminal Court subordinate to its authority to any other such criminal Court of equal or superior jurisdiction on the ground of general convenience of the parties or witnesses or when it is felt expedient for the ends of justice, it cannot be said that this Court is required to take note of only the place of abode or the service place of the accused while making transfer of the cases in exercise its plenary administrative power. The petitioners may have a little inconvenience in attending the Court at Jeypore but the main criteria should be trial of a case in a Court within whose jurisdiction the offence was committed. The place of service as well as the place of abode of the parties may change from time to time but that cannot be a factor which would outweigh the jurisdictional point consideration in a criminal trial.” ….. In the case of Abdul Nazar Madani Vs. State of T.N. & Anr. reported in (2000) 6 SCC 204 , the Supreme Court has held : ...." The apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable TRPCRL No. 66 of 2022 Page 20 of 25 // 21 // 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 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 parties does not necessarily mean 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."..... 10. A perusal of the chargesheet indicates that P.W.1, P.W.2, P.W.44, P.W.45, P.W.46 and P.W.51 belong to Phulbani. P.W.3 to P.W.14, P.W.24, P.W.26, P.W.61, P.W.62, P.W.70, P.W.71 and P.W.76 belong to Ganjam District. P.W.15 and P.W.74 belong to Cuttack, P.W.50 belongs to Bargarh and P.W.77 belongs to Bhubaneswar. P.W.16 to P.W.23, P.W.25 (1), P.W.25 (2), P.W.27 to P.W.42, P.W.47, P.W.52 to P.W.60, P.W.63 to P.W.69, P.W.72, TRPCRL No. 66 of 2022 Page 21 of 25 // 22 // P.W.73 and P.W.75 belong to Berhampur, District Ganjam. So the submission of the learned counsel for the petitioners on that score is correct. 11. On a consideration of the decisions referred to above, it is apparent that no hard or fast rule can be prescribed for transferring a case and it has to be decided on the basis of the facts of the particular case. The apprehension of the accused of not getting a fair and trial should however be reasonable and not imaginary and a case cannot be transferred for the mere asking. It has also to be kept in mind that speedy trial is a fundamental right of the accused, and the trial should not be allowed to linger causing hardship to the accused due to failure of the prosecution to secure attendance of its witnesses at a particular place. While considering the convenience of the parties asking for transfer, the convenience of the prosecution as well as the witnesses has to be kept in mind. Some inconvenience will definitely be faced by an accused if the Court is not situated at the station where he / she resides. But transferring a case on that sole ground would amount to stretching the slogan – “justice at the doorstep” too far. 12. In the case of Mrudul M Damle , the petitioner had sought for transfer from Delhi to Thane . The Court found that it would be difficult for the trial to be concluded early as witnesses would have to TRPCRL No. 66 of 2022 Page 22 of 25 // 23 // travel from distant places and the prosecution would also have to bear the extra burden of the travelling expenses. The distance between Delhi is reported to be about 1423 Kms. and there travelling time by train between the two places will be about 15 hours. The case was decided in the year 2012 when the facility of examination of witnesses through video conferencing had not been conceived. Now a days, the inconvenience which may be faced by an accused and/ or a witness on account of the huge distance between the place of his/ and place of her residence/posting and the court can be effectively addressed by utilising the procedure of video conferencing, whenever necessary and possible. 13. It has been submitted by the learned counsel for the petitioners that they stay in Berhampur and are undergoing treatment in Bhubaneswar at AIIMS. Documents in support of their ailments or treatment have however not been annexed. The distance by road between Bhubaneswar and Berhampur is reported to be about 173 Kms and between Berhampur and Phulbani is 180 Kms. The prosecution has opposed the prayer for transfer and submitted that it is their duty to produce the prosecution witnesses and they are prepared to examine witnesses by video conferencing wherever required. TRPCRL No. 66 of 2022 Page 23 of 25 // 24 // 14. After considering the submissions of the counsels, the decisions of the Supreme Court and this Court, the statutory provisions referred to above, the comparative distances between Bhubaneswar, Berhampur and Phulbani; especially the submission of the prosecution that it is prepared to examine witnesses through video conferencing whenever required, I do not find this to be a fit case to exercise power under Section 407 of Cr.P.C. to transfer the case from Phulbani to Berhampur. 15. If the petitioners can travel to Bhubneswar for treatment, they can very well travel to Phulbani as the distance between the places is almost the same. But they will definitely face some inconvenience if they are required to travel to Phulbani frequently to face the trial. In order to mitigate their inconvenience and preserve their right for a speedy trial, I direct that the personal appearance of the petitioners will not be insisted upon by the learned Special Judge (Vigilance), Phulbani unless absolutely necessary. On the other dates, if the petitioners are unable to appear personally, they can file applications under Section 317 Cr.P.C. through their counsel which shall be considered liberally provided the petitioners give an undertaking that they shall not claim prejudice if witnesses are examined in their absence. The petitioners will also be given the TRPCRL No. 66 of 2022 Page 24 of 25 // 25 // liberty to appear through video conferencing, whenever necessary and possible. 16. It is stated at the bar that the case is now posted to 15.03.2023 for the purpose of framing of charge. As the learned counsel for the Vigilance has stated that the prosecution witnesses can be examined through video conferencing, it is observed that the learned Special Judge (Vigilance) shall examine witnesses through video conference whenever necessary if for any reason the witness is unable to come to Phulbani on the date fixed for his/ her examination, so that the trial is not protracted unnecessarily. 17. Liberty is also granted to the petitioners to apply for transfer again if there is undue delay in the trial on account of the failure of the prosecution to produce witnesses. 18. The TRPCRL is dismissed with the aforesaid directions. ......................... (Savitri Ratho) Judge Orissa High Court, Cuttack Dated 3rd March, 2023 / puspa TRPCRL No. 66 of 2022 Page 25 of 25
Arguments
Phulbani is 180 kms. He has also submitted that there are 77 charge sheet ( in short “CS”) witnesses in the case out of whom, CS witness nos.1,2,44,45,47,51 and 76 belong to Phulbani, while CS witness nos.15 and 74 belong to Cuttack, charge sheet witness no.43 belongs to Udala, CS witness no.49 belongs to Adava in the District of Gajapati, CS witness no.49 belongs to Nabarangpur, CS witness No.48 belongs to Koraput, CS witness No.50 belongs to Baragada, CS witness No.77 belongs to Bhubaneswar and the rest 63 CS witnesses are from Ganjam District for which it will be convenient TRPCRL No. 66 of 2022 Page 3 of 25 // 4 // for the prosecution, if the case is transferred from the Court of learned Special Judge, Phulbani to learned Special Judge, Berhampur. He has also relied on the decision of the Apex Court in the case of Swaati Nirkhi & Others Vs. State (NCT of Delhi) & Others reported in AIR 2021 SC 1303, Mrudul M. Damle & Another Vs. C.B.I., New Delhi, reported in (2012) 5 SCC 706, Usmangani Adambhai Vahora Vs. State of Gujarat and Another reported in (2016) 3 SCC 370 in support of his submission for transfer of the case. 4. Mrs. Jyotshna Tripathy, learned Addl. Standing Counsel for the Vigilance Department has filed an objection in this case wherein it has been stated that it is not necessary for the accused persons to attend the Court on each date of posting and their presence can be exempted by taking recourse of Section 317 Cr.P.C. whenever they are unable to be present in the Court and that is the duty of the prosecution to procure the attendance of the witnesses and the petitioners have no role to play for production of prosecution witnesses before the trial Court. It has been further stated that the proceeding in the trial Court can be conducted by way of Video Conferencing whenever required and the witnesses can appear before the Special Judge (Vigilance), Phulbani on the virtual mode. Referring to Section 4(2) of the Amended P.C. Act, 2018, she submits TRPCRL No. 66 of 2022 Page 4 of 25 // 5 // that every offence specified in Sub-Section (1) of the Section 3 shall be tried by the Special Judge for the area within which it was committed or as the case may be, by the Special Judge appointed for the case or where there are more Special Judges than one for such area, by such one of them as may be specified in this behalf by the Central Government. Since the offence was committed within the jurisdiction of Special Judge, Phulbani, the Special Judge, Berhampur no longer has jurisdiction to try the case. She has relied on the decision of the Hon’ble Supreme Court in the case of Bhiaru Ram and Others Vs. CBI and Others reported in (2010) 47 OCR SC 286 and Sudhanshu Shekhar Mishra and Others Vs. State of Orissa and Others reported in (2016) 65 OCR 499, in support of her submission that that the prayer for transfer deserves to be rejected. 5. I have heard the learned counsels, perused the copy of the FIR and the chragsheet annexed to the petition, the affidavit filed by the learned counsel for the Vigilance Directorate. 6. As per Section 177 of the Cr.P.C., the ordinary place of inquiry and trial has to be by the Court within whose local jurisdiction, the crime was allegedly committed. Section 177 of Cr.P.C is extracted below : 177. Ordinary place of inquiry and trial. Every offence shall ordinarily be inquired into and tried by a TRPCRL No. 66 of 2022 Page 5 of 25 // 6 // Court within whose local jurisdiction it was committed.” Section 4 of the Prevention of Corruption Act 1988, deals with powers of the Special Judge to try the cases under the PC Act. It is extracted below : “4. Cases triable by special Judges.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or in any other law for the time being in force, the offences specified in sub-section (1) of section 3 shall be tried by special Judges only. (2) Every offence specified in sub-section (1) of section 3 shall be tried by the special Judge for the area within which it was committed, or, as the case may be, by the special Judge appointed for the case, or where there are more special Judges than one for such area, by such one of them as may be specified in this behalf by the Central Government. (3) When trying any case, a special Judge may also try any offence, other than an offence specified in section 3, with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial. (4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), a Special Judge TRPCRL No. 66 of 2022 Page 6 of 25 // 7 // shall, as far as practicable, hold the trial of an offence on day-to-day basis.” While the word “ordinary” appears in Section 177 of the Cr.P.C., Section 4 (2) of the PC Act uses the word “shall”. Therefore the offences under the PC Act are necessarily to be tried by a Special Judge appointed for the area within which the offence was committed. Section – 407 of the Cr.P.C deals with the power of the High Court to transfer a case. Therefore in order to decide if the petitioners have made out a case for exercise of power conferred by Section – 407 Cr.P.C., it is necessary to refer to the provisions of Section 407 Cr.P.C. Section - 407. Power of High Court to transfer cases and appeals. (1) Whenever it is made to appear to the High Court- (a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or (b) that some question of law of unusual difficulty is likely to arise, or (c) 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, it may order- TRPCRL No. 66 of 2022 Page 7 of 25 // 8 // (i) that any offence be inquired into or tried by any Court not qualified under sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence; (ii) that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction; (iii) that any particular case be committed for trial to a Court of Session; or (iv) that any particular case or appeal be transferred to and tried before itself. (2) The High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative: Provided that no application shall lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him. (3) Every application for an order under sub- section (1) shall be made by motion, which shall, except when the applicant is the Advocate- General of the State, be supported by affidavit or affirmation. (4) When such application is made by an accused person, the High Court may direct him to execute a bond, with or without sureties, for the payment of any TRPCRL No. 66 of 2022 Page 8 of 25 // 9 // compensation which the High Court may award under sub- section (7). (5) Every accused person making such application shall give to the Public Prosecutor notice in writing of the application, together with copy of the grounds on which it is made; and no order shall be made on of the merits of the application unless at least twenty- four hours have elapsed between the giving of such notice and the hearing of the application. (6) Where the application is for the transfer of a case or appeal from any subordinate Court, the High Court may, if it is satisfied that it is necessary so to do in the interests of justice, order that, pending the disposal of the application, the proceedings in the subordinate Court shall be stayed, on such terms as the High Court may think fit to impose: Provided that such stay shall not affect the subordinate Court' s power of remand under section 309. (7) Where an application for an order under sub- section (1) is dismissed, the High Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider proper in the circumstances of the case. (8) When the High Court orders under sub- section (1) that a case be transferred from any Court for trial before itself, it shall observe in such trial the same TRPCRL No. 66 of 2022 Page 9 of 25 // 10 // procedure which that Court would have observed if the case had not been so transferred. (9) Nothing in this section shall be deemed to affect any order of Government under section 197. From a careful reading of the provisions, it is apparent that a case/appeal/class of cases or appeals from a Criminal Court subordinate to it to any other Criminal Court of equal or superior jurisdiction or even to the High Court, if it finds that : a) a fair and impartial inquiry or trial cannot be held in such Court; or b) some question of law of unusual difficulty is likely to arise; or c) an order under this section is required by any provision of this Code; or d) it will tend to the general convenience of the parties or witnesses; or e) is expedient for the ends of justice; it may order that any particular case, or appeal, or class of cases or appeals, be transferred. This power can be exercised by the High Court suo motu, on the report of the lower Court or on an application of the party interested. 7. In the present case, as per the charge sheet, the offences have been committed while the petitioner was serving in Padmapur, Nawarangpur, Chakapada, Khajuripada, Kaptipada and Phulbani. The TRPCRL No. 66 of 2022 Page 10 of 25 // 11 // chargesheet reveals that Padmapur is in Rayagada District, Chakapada Khajuripada and Balliguda are in Kandhamal District. When the FIR was filed, the case was under the Special Judge, Vigilance Berhampur. Although it has been stated in paragraph 4 of the petition that the charge sheet has been filed before the learned Special Judge, Berhampur, Ganjam, it has been stated in paragraph 5 of the petition that cognizance of offences has been taken by the Special Judge, Vigilance, Phulbani. But perusal of the chargesheet reveals that it has been filed before the Special Judge (Vigilance), Phulbani, District– Kandhamal. It has to be now examined if the transfer will tend to the general convenience of the parties or witnesses or is expedient for the ends of justice. 8. In the case of Swaati Nirkhi (supra), on the prayer of one of the accused, the Supreme Court had passed an ex parte order and transferred the case from the Court of Metropolitan Magistrate, Rohini Court, Delhi to the Court of Metropolitan Magistrate at Allahabad, (Prayagaraj) U.P. But liberty had been granted to the complainant to approach the Court if they had any grievance . An M.A. filed by complainant was rejected, but the Review Petition filed thereafter was allowed and the transfer application was heard afresh. TRPCRL No. 66 of 2022 Page 11 of 25 // 12 // The case involved offences under Section – 389, 419, 506, 120 B and 34 IPC and 23 witnesses had been mentioned in the chargesheet. 16 were official witnesses and 7 were non official witnesses. The Court after dealing with expression “cause of action” and on hearing the parties found that the cause of action had arisen in Delhi and most of the witnesses belonged to Delhi and they would face inconvenience in travelling to Allahabad (Prayagraj). It also found that the alleged apprehension of the accused persons, did not constitute any exceptional circumstances. It ultimately directed that the proceeding which had been initially been directed to be transferred to Allahabad by an ex parte order, was transferred back to Delhi. While doing so, the Court considered the provision of Section 177 of the Cr.P.C. and observed as follows: “14. In a criminal case, the place of inquiry and trial has to be by the Court within whose local jurisdiction, the crime was allegedly committed as provided by Section 177 of Cr.P.C. “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.” 15. 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. TRPCRL No. 66 of 2022 Page 12 of 25 // 13 // This court has consistently held that a criminal case ought to be inquired and tried ordinarily where the cause of action has accrued”….. “16. In the present case, we find that most of the prosecution witnesses are situated in Delhi. That 12 official witnesses are serving in New Delhi. If the Transfer Petition is allowed, they would be required to travel from New Delhi to Allahabad (Prayagraj), which would cause hinderance in performing their official duties.” In the case of Mrudul M. Damle (supra), the petitioner no.2-husband therein was posted as Assistant Commissioner, Central Excise, Customs and Service Tax at Vapi, Gujarat and petitioner No.1-wife was practicing as a Chartered Accountant in the State of Maharastra. Both the Petitioners were facing prosecution for commission of offences punishable under Section 13 (1) (e) and Section 13 (2) of the P.C. Act. The Supreme Court while directing for transfer of the case from Delhi to Maharastra, observed as follows: “6. The material facts relevant to the determination of the question of expediency are not in dispute inasmuch as the respondent do not dispute that the chargesheet enlists 92 witnesses, 88 out of whom are from outside Delhi and from different places in Maharashtra. It is also not in dispute that petitioner No.1 is a Chartered TRPCRL No. 66 of 2022 Page 13 of 25 // 14 // Accountant practising in Thane, petitioner No.2 who is the only other accused in the case who is currently posted at Vapi in the State of Gujarat which is in comparison to Delhi closer to Thane. It is in the light of those admitted facts obvious that the trial in Rohini Court at Delhi would be inconvenient not only to the accused persons but also to almost all the witnesses cited by the prosecution except 4 who may be in or around Delhi. The case is even otherwise not Delhi centric in the true sense inasmuch as the only reason the FIR was registered in Delhi was the fact that petitioner No.2 was posted in Delhi during a part of the check period. 7. Mr. Rawal no doubt argued that a transfer of the case outside Delhi will cause prejudice to the respondent but was unable to show how that would be so. Mr. Rawal had in fact taken time to examine whether the list of witnesses could be suitably pruned to expedite the conclusion of the trial. But after taking instructions, Mr. Rawal submitted that it would not be possible at this stage to make any such statement, and rightly so, because it is only the public prosecutor who can take a call on that aspect after the trial starts, depending upon how the facts sought to be proved are seen by him or have been proved.” It further observed that: “12. There is no gainsaying that a trial at Delhi in which witnesses are expected to travel from TRPCRL No. 66 of 2022 Page 14 of 25 // 15 // Maharashtra is bound to linger on for years. Expeditious disposal of the trial is also a facet of fairness of the trial and speedy trial is infact a fundamental right as observed by this court in Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar, Patna (1980) 1 SCC 81. When witnesses from distant places are sought to be summoned, early conclusion of the trial becomes so much more difficult apart from the fact that the prosecution will have to bear additional burden by way of travelling expenses of the official and non-official witnesses summoned to appear before the Court.” In the case of Bhiaru Ram (supra), the F.I.R. had been registered in Delhi and charge sheet had been filed in Mumbai under Section 13 (2) read with Section 13 (1) (e) of the P.C. Act. The main accused (an I.T. Officer) had not filed for transfer. Co-accused persons had approached the Court praying for transfer of the case on the ground that most of the disproportionate assets were located in Rajasthan and most of the witnesses belong to Rajasthan and the Petitioners also belong to Rajasthan. The Supreme Court found that the number of witnesses cited were not so large nor the bulk of the witnesses were located in the State to which the case sought to be transferred and there were serious apprehensions regarding the TRPCRL No. 66 of 2022 Page 15 of 25 // 16 // fairness of the trial in the State the case was sought to be transferred and the main accused was an influential person. The Petitioners had been charge sheeted for commission of offences under Section 109 read with Section 193 of the I.P.C. read with Section 13 (2) read with Section 13 (1) (e) of the Prevention of the Corruption Act for having actively aided and abetted the main accused by fabricating false evidence through preparation of false Agreements to Sell with the object to justify/explain the huge cash recoveries from the residential premises of Respondent No.3. The Supreme Court held as follows: “9. A perusal of the charge sheet containing all these details clearly shows that witnesses to be examined are not only from Jaipur, Rajasthan, but also from various other places including Mumbai. Though the petitioners may have a little inconvenience, the mere inconvenience may not be sufficient ground for the exercise of power of transfer but it must be shown that the trial in the chosen forum will result in failure of justice. We have already pointed out that except the plea of inconvenience on the ground that they have to come all the way from Rajasthan no other reason was pressed into service. Even, the request for transfer to Delhi cannot be accepted since it would not be beneficial either to the petitioners or to the prosecution. In fact, the main accused, respondent Nos. TRPCRL No. 66 of 2022 Page 16 of 25 // 17 // 3 & 4 have not filed any petition seeking transfer. In such circumstances, the plea of the petitioners for transfer of the case from the Court of Special Judge, CBI, Greater Mumbai to Special Judge, CBI, Jaipur on the ground of inconvenience cannot be accepted.” 9. In the case of Sudhanshu Shekhar Mishra (supra), the trial had started in Berhampur and two witnesses had been examined. But after opening of the Special Court in Jeypore, the trial was transferred to Jeypore after examination of witnesses had started. This transfer was challenged by some of the accused persons. This Court held as follows: “8. Coming to the second ground first, Section 4(2) of the 1988 Act stipulates that every offence specified in Sub- section (1) of Section 3 shall be tried by the Special Judge for the area within which it was committed, or, as the case may be, by the Special Judge appointed for the case, or, where there are more Special Judges than one for such area, by such one of them as may be specified in this behalf by the Central Government. In this case, there is no dispute that the offence was committed within the present jurisdiction of the learned Special Judge, Vigilance, Jeypore. It is also not disputed that when the F.I.R. was lodged, charge sheet was submitted, cognizance of offences was taken and the trial commenced, there was no competent TRPCRL No. 66 of 2022 Page 17 of 25 // 18 // Court at Jeypore vested with jurisdiction to deal with such matters and therefore, all such types of cases were being tried by the learned Special Judge, Vigilance, Berhampur. Once the Special Court, Vigilance, Jeypore was established, the learned Special Judge, Vigilance, Berhampur lost its jurisdiction to try the case as on the general principle, the Court at Berhampur does not ordinarily have extra territorial jurisdiction. Once a Special Judge was appointed at Jeypore, the cases from the Court of Special Judge, Vigilance, Berhampur are required to be transferred to the said Court of competent jurisdiction otherwise the very purpose of establishment of such Court at Jeypore and appointment of a Special Judge will get frustrated. The legislature has enacted the 1988 Act and provided for speedy trial of offences punishable under the said Act in the public interest. Considering the object and scheme of the Act and in the public interest, when the High Court decided to exercise its plenary administrative power after establishment of the Court of Special Judge, Vigilance, Jeypore to transfer the case from Berhampur to Jeypore without impinging upon or prejudicially affecting the rights and interests of the parties, I am of the view that it cannot be said that the impugned order passed on the direction of the High Court suffers from any illegality or infirmity rather the same would advance the cause of justice. Two of the co-accused persons who have been made as TRPCRL No. 66 of 2022 Page 18 of 25 // 19 // proforma opposite parties in this application have not challenged the order of transfer and therefore, it is presumed that they have no grievance. There is nothing on the record to suggest that the petitioners will not get fair trial and may face miscarriage of justice. The ratio