NABIN CHANDRA PATNAIK Vs. NARENDRA MOHAPATRA

JUDGEMENT

(1.) THIS application under Section 407(1)(c)(ii) of the Code of Criminal Procedure has been made by the Petitioner, who figures as the accused person in the court of the learned Chief Judicial Magistrate, Keonjhar, in the district of Keonjhar in lee No. 79 of 1978 instituted by the opposite party and in which cognisance of the offence punishable under Section 500 of the Indian Penal Code has been taken, for trial by a court at Berhampur in the district of Ganjam. I have heard the learned Counsel for both the sides. The grounds taken for transfer and raised before this Court are that the Petitioner is an old and ailing person aged about 65 years and has been forbidden by the doctors to travel long distances and he apprehends that the opposite party, who, according to the Petitioner is an influential person of Keonjhar, has arranged some Goondas to feed -fat his grudge and the Petitioner apprehends danger to his life. It has also been stated in the application, and submitted before me that when the Petitioner 5 son had visited Keonjhar in September, 1979, to ascertain the position of this case, the opposite party, with the help of some rowdy elements, openly threatened him and gave out that the Petitioner would not be spared if he appeared at Keonjhar. These allegations, which have been supported by an affidavit, have been controverted by a counter affidavit sworn in by the opposite party. Thus there has been oath against oath.

(2.) AS can be seen from the record, the Petitioner has not yet appeared in the court although cognisance has been taken as far back as on 30 -9 -1978 and several steps have been taken for service of the summons on him and after he received the summons and made an application for an adjournment without himself appearing on 9 -4 -1979, he absented himself and thereafter a non bailable warrant of arrest has been issued against the Petitioner which remained unexecuted until further proceedings were stayed by an order of this Court passed on 4 -12 -1981 in this Miscellaneous Case. It would thus appear that the Petitioner has no personal knowledge about the apprehensions of his. As has been submitted at the Bar, no report to the police or other authorities had been made by the Petitioner's son when the opposite party with some other rowdy elements allegedly gave the threat. The apprehensions of the Petitioner do not, therefore, seem to be well founded.

(3.) AS has been laid down by this Court in the case of Alekha Dutta v. Khetramohan Sahu : 36 (1970) C.L.T. 1242, in a case of transfer, the interest not only of the accused, but also of the complainant has to be looked into. There is a general consensus of judicial opinion that in matters of transfer greater emphasis is to be laid on the convenience and interest of the accused rather than of the prosecutor. While doing so, the interest of the prosecutor and his right to institute criminal proceedings punishable under the law should not also be unreasonably whittled down. In cases of transfer, therefore, a balance is to be struck. No hard and fast rule can be laid down as a matter of principle. An application for transfer is to be considered always with reference to the facts and circumstances of each case. The grounds on which a transfer may be ordered have been laid down by the Supreme Court in Mrs. Menaka Sanjay Gandhi and Anr. v. Miss Rani Jethmalani : A.I.R. 1979 S.C. 468, Krishna Iyer, J., speaking for the Court, has observed and held thus: