JALANDHAR PRADHAN Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS is an application U/s. 407 of the Code of Criminal Procedure praying for transfer of G.R. Case No. 12/1989 (v) pending before the Special Judge (Vigilance), Berhampur to the Court of Special Judge (Vigilance), Bhubaneswar.

(2.) THE case of the petitioner is that his house was searched by the officers of the Vigilance Department on 25.2.1988 on the basis of a search warrant and on 20.4.1989 the Inspector of Police (Vigilance) drew up a First Information Report and investigation was taken up. After completion of investigation charge sheet was submitted. The case of the prosecution as evident from the charge sheet is that during the period of the petitioner was serving in the Excise Department at Nayagarh, Bolangir, Deogarh, Padampur, Rayagada and Koraput, he had accumulated assets worth Rs. 8, 63, 002. 70 paise in between 15.10.1967 to 20.3.1988. During the said check period the income of the petitioner was found to be Rs. 2,79,994.94 paise and expenditure of Rs. 2,38,049.43 paise leaving a likely savings of Rs. 41,945.01 paise. On the aforesaid basis the disproportionate of assets acquired by the petitioner during the check period was assessed at Rs. 8,21,057.69 paise. After cognizance was taken by the learned Special Court. Cuttack, the petitioner appeared and was released on bail. After the Special Court Act was repealed, the case was transferred to the Court of Special Judge (Vigilance), Bhubaneswar and was registered as T.R. Case No. 36 of 1994. However, it is alleged in the petition that on an erroneous impression on point of jurisdiction, the case was transferred to the Court of Special Judge (Vigilance), Berhampur. After the petitioner came to know about such transfer has challenged the same before this Court in this application and prays for transfer of the said case back to the Court of Special Judge (Vigilance), Bhubaneswar. The further case of the petitioner is that he has retired from Government Service on 31.3.1999 and is staying in a rented house at Cuttack and is also under going treatment. Since it is difficult for him at this age to go to Berhampur and attend the Court, the prayer for transfer has been made.

(3.) IT appears from the order sheet that after coming into force of Orissa Special Courts Act, 1990 the case was transferred to the Special Court from the Court of Special Judge. Bhubaneswar and on 29.3.1995 the Special Court on receipt of records took cognizance of offence punishable U/s. 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 read with Section 8(2) of the Orissa Special Courts Act, 1990 and issued summons to the petitioner for appearance. Thereafter, thereafter the order dated 5.9.1995 indicates that in view of Orissa Act 10 of 1995 the case records were remitted back to the Special Judge (Vigilance), Bhubaneswar and the matter was taken up by that Court from 12.9.96. The order dated 10.8.2000 shows that the Special P.P. (Vigilance) filed a petition for transfer of the case from the Court of Special Judge (Vigilance), Bhubaneswar to the Court of Special Judge (Vigilance) Berhampur. It was stated in the petition that the case was instituted at Berhampur Vigilance Police Station and charge sheet was filed before the C.J.M. Berhampur. It was also stated in the petition that the assets acquired by the petitioner included one house at Phulbani near the Post Office, another house in the native Village of the petitioner at Keradi in the District of Phulbani and two plots in the name of the wife of the petitioner at Phulbani. Most of the witnesses were also from the District of Phulbani and therefore it was convenient for the prosecution to produce the witnesses if the case is transferred to the Court of Special Judge (Vigilance), Berhampur. On the above petition, the Special judge (Vigilance). Bhubaneswar directed the Special P.P. (Vigilance) to move the High Court for transfer of the case. The dtd. 16.9.2000 indicates that pursuant to letter No.735 dated 31.8.2000 issued from the High Court directing transfer of the case to the Court of Special Judge (Vigilance), Berhampur, the records were transmitted and after receipt of the records, the learned Special Judge (Vigilance), Berhampur has issued summons to the petitioner. The learned counsel appearing for the petitioner submitted that he was not given an opportunity of hearing for filing objection to the petition of the Special P.P. before the case was transferred to Berhampur and relied upon a judgment of this Court in the case of "Satyananda Pani V. State of Orissa reported in 2000 (1) OLR 181. In the reported case, charge sheet was submitted against the petitioner therein U/s. 13(2) read with Sec 13 (1)(d)/7 of the Prevention of Corruption Act, 1988 and the matter was pending before the Special Judge (Vigilance). Bhubaneswar. Subsequently, a Court of Special Judge (Vigilance) was established at Berhampur in the year 1997 and on the instruction of the High Court, the case was transferred to the Court of Special Judge (Vigilance), Berhampur. It was contended before the Court that it will be convenient for both the parties if the case was tried before the Special Judge (Vigilance). Bhubaneswar. Considering such submission as well as on perusal of record, the Court found that in the said case charge had already been framed by the Special Judge (Vigilance), Bhubaneswar and hearing of the case had already commenced. Therefore, the case could only be transferred by exercise of judicial power envisaged U/Ss. 407 and 408 of the Code of Criminal Procedure and could not be transferred by an administrative order.