RABINDRA PATRA ALIAS RABINDRANATH PATRA Vs. DIPU NAYAK

JUDGEMENT

(1.) 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 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 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 INDIAN LAW REPORTS, CUTTACK SERIES [2010] 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 Code of Criminal Procedure 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 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 Code of Criminal Procedure 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 Code of Criminal Procedure