BUDHADEV PANDA Vs. STATE OF ORISSA

JUDGEMENT

(1.) Petitioner has prayed for a direction to the learned Judicial Magistrate, First Class, Narasinghpur (in short 'JMFC') to commit G.R. Case No. 10. of 1993 to the Court of Session, Cuttack to be tried as counter -case to S.T. Case No. 375 of 1993 pending before learned Second Additional Sessions Judge, Cuttack.

(2.) BACKGROUND facts as portrayed by petitioner to support the prayer in essence are as follows: Petitioner and six others are arraigned in G.R. Case No. 10 of 1993 pending in Court of learned JMFC, Narasinghpur, for alleged commission of offences punishable under Sections 147, 148 and 323, 325, 294, 452 read with Section 149 of the Indian Penal Code, 1860 (in short, 'IPC'). Charge -sheet has been submitted after investigation and learned JMFC has taken cognizance of aforesaid offences. The said G.R. case corresponds to Kanpur P.S. Case No. 4 of 1993. Another case i.e. Kanpur P.S. Case No. 3 of 1993 corresponding to G. R. Case No. 9 of 1993 was instituted for commission of offence under Section 302 read with Section 109 IPC and Section 27 of Arms Act. This case has been committed to the Court of Session and is pending trial. It has been renumbered as Sessions Trial No. 376 of 1993. Petitioner is informant in the aforesaid Kanpur P.S. Case No. 3 of 1993.

(3.) SECTION 407 of the Code, so far as relevant, reads as follows : '407, Power of High Court to transfer cases and appeals. (1) Whenever it is made to appear to the High Court - (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 - (iii) that any particular case be committed for trial to a Court of Session;xx xx xx Under Section 407(1)(c) of the Code, the transfer of a case can be made from one Court to another if it tends to the general convenience of parties or witnesses. The principle to be followed in questions of transfer is that it is not so much a matter of convenience, nor of possible injustice which has to be considered, it is the apprehension in the minds of accused persons and incidentally the public, which ought to be taken into account. While it is true that convenience and expediency are factors to be considered in trial of a case, beyond even those considerations is most important consideration that justice should be done. Question as to whether transfer of a trial before a particular Magistrate is expedient in the ends of justice or not, has to be considered on the point of view of the accused also. A prayer for transfer is always to be considered with reference to the facts and circumstances of each case. No hard and fast rule can be laid down as a matter of principle. While greater emphasis to be laid on the convenience and interest of the accused than of the prosecutor, even the interest of the prosecutor and his right to institute criminal proceedings permissible, under law are not to be unreasonably whittled down. A balance has to be struck.