@JUDGMENTTAG-ORDER
P.K. Mohanty, J.@mdashThis is an application u/s 407, Code of Criminal Procedure to transfer a U.R. Case from the Court of learned S.D.J.M., Phulbani to the Court of learned S.D.J.M., Berhampur mainly on the following grounds, as enumerated in paragraphs 2 and 3 of the petition, which are quoted hereunder :
2. That I am feeling unusual difficulties, because according to medical report of 14th August, 1997 I am suffering from cronic diarrhoea severe anaemia, dysentry, stomach pain. The distance from Phulbani town to Berhampur Town in about 200 k.ms. As I am a lady and a patient 1 may suffer on the way from many causes. Then the case also reached on a critical event. The family members of my husband are about 15 living in Phulbani Town. They all gunda types. Since, their native place was Phulbani. They are local people of Phulbani but neither my relatives nor my friend circles are there.
3. His father Brundabana Sahu was a retired Steno of District Court, Phulbani, so now the copy section of Phulbani S.D.J.M. Court produced wrong copies towards my side. The types of Steno of Phulbani S.D.J.M. Court may be wrong. The order may be wrong. So the case reached at a critical point. By which I became hopeless and more helpless. In Berhampur Court, I filed my 125 128 Cr. P.C.case, as a petitioner, because he stop my case at advocates. The type of the steno of Berhampur Court also without evidence try to prove my demand rupees given by parents and the same are place on the order (sic) of September, 1998. My husband Nityananda Sahu also come to Berhampur S.D.J.M. Court, Ganjam about 6/7 times for attend the Court without any trouble. According to FIR the charge sheet also not prepared by move of the anticipatory bail of High Court, Cuttack. The accused persons surrendered under that Phulbani S.D.J.M. Court on November, 1995.
2. The petitioner reiterated the averments made above and prays for transfer of the case.
3. The opp. party No. 1 has filed a counter affidavit controverting the factual aspects in the petition and inter alia asserts that none of the grounds mentioned in the petition is a ground for transfer of the petition inasmuch. as the petitioner who claims to be ill has not produced any medical certificate in support of her case. It is stated that the petitioner is working at Ramagiri and the distance from Ramagiri and Phulbani is not 200 K.Ms. It is asserted that the petitioner is working as Principal in Dr. B. R. Ambedkar National College, Ramagiri and she is hale and hearty and capable of extensive movements. The allegation regarding the family members of the opp. party No. 1 has been denied inasmuch as it is stated in paragraph 3 that there are only two family members of the opp. party residing at Phulbani i.e. the opp. party No. 1''s old mother and his younger brother. In paragraph 4 of the counter-affidavit it is stated that the petitioner in order to file the present case had gone to Phulbani and stayed for some days for procuring the certified copy and the police papers and the allegations against the opposite party and the family members are false. It is stated that all the witnesses are of Phulbani, the investigation is conducted at Phulbani and the Phulbani Court has the jurisdiction and if the accused persons as well as the witnesses are asked to come to Berhampur for the trial of the case, they will be seriously prejudiced and it would cause immense difficulties without any reason or rhyme.
4. Learned counsel for opp. party No. 1 while reiterating the averments made in the counter-affidavit, submits that there is absolutely no material placed before the Court to justify a transfer inasmuch as the transfer has been sought on extraneous grounds. The illness of the petitioner, for which absolutely no material has also been produced, is false. It is the further submission of the learned counsel that the petitioner has been coming to Cuttack, which is at a distance of about 200 K.Ms, from Berhampur to conduct for several cases in the High Court in person and otherwise and, therefore, the plea that because of her ailment she cannot move to Phulbani, which is at an equal distance of 200 K.Ms. for the purpose of the G.R. Case, cannot be accepted. It is submitted that the petitioner is the informant and this being a G.R. Case her presence may only be necessary for the purpose of her evidence and she is not required to attend the trial frequently on each day. In view of the rival contentions raised in this case, the question is whether in the facts and circumstances of the come, it is a just case for transfer of the G.R. Case.
5. Law is well settled that assurance of a fair trial is the first imperative of the dispensation of justice and is the main criteria for the Courts to exercise the power of transfer u/s 407, Cr. P.C. Mere allegation like substantial prejudice, non-availability of the conjenial atmosphere for a fair trial cannot be the sole ground for transfer of a case. Apprehension must be reasonable and appear to the Court, to be so. Thus, the question that is to be considered is whether, the petitioner can reasonably entertain an apprehension that she would not get justice or that there is reasonable apprehension that she may not be able to attend the Court to take steps and depose as a witness. There must be evidence to show that there is likelihood of obstruction or infliction of injury from the conduct, of the party.
6. In the case at hand, the main ground as would reveal from the aforesaid quoted grounds is that the petitioner-wife is ailing and that the accused-husband has a big family members, who are of goonda types, and that she has to travel 200 K. Ms. from the place of her residence to the Court at Phulbani. The opposite party No. 1 has however refuted the claim on all counts and stated on affidavit that there are only two members in the family of the opp. party staying at Phulbani, one is an old mother and other is his younger brother and there is absolutely no on toward incident during this period.
7. The petitioner has not filed any medical certificate in support of her ailment inasmuch as the ailment of the informant in a G.R. Case is no ground for transfer of a criminal proceeding to her place of residence. It is contended by the opposite party that the petitioner is frequently coming to Cuttack in connection with her number of cases in the High Court which she conducts in person and Cuttack is at a distance of 200 K.Ms. from Berhampur, the alleged place of residence of the petitioner and if there is no difficulty to come to Cuttack, there cannot be any reason why she cannot come to Phulbani. The allegation that the opposite party has more than 15 members in his family and the petitioner does not have any is hardly a ground without anything more to justify a reasonable apprehension in the mind of the petitioner that she may be harassed, prevented and/or injured, if she comes to Phulbani inasmuch as there is no allegation that if she comes to Phulbani she is likely to be injured. There is even no allegation in the petition that she was ever been threatened like that by anybody and there has been any on toward incident after she left the matrimonial home. Further an apprehension cannot be entertained unless there is some evidence to show that there is likelihood of any infliction of injury from the conduct of the other party. There must be a reasonable apprehension by placing relevant materials on record. No material has been so placed, as rightly been contended by the learned counsel for the opp. party. It is also contended by the learned counsel that the petitioner is serving at Ramagiri, nearer to Phulbani and she takes frequent journeys to Cuttack at a distance of 200 K.Ms. from Berhampur, where she wants a transfer of the G.R. Case. The Apex Court in
8. The petitioner is the informant of the G.R. Case registered for an alleged offence u/s 498, IPC and Section 4 of the Dowry Prohibition Act and as such, the prosecution is to be conducted by the prosecuting agency where the petitioner would be a witness and required to give her evidence and, therefore, she is not required to attend the Court for the trial on each date. The allegation of Opp. party No. 1 that the petitioner comes to Cuttack by travelling 200 K.Ms. frequently for her case cannot be disbelieved totally since at best for this case as revealed from the order sheet she appears in person on same dates and, therefore, the plea of her illness, which prevents her from moving to Phulbani situated at a similar distance of 200 K.Ms. can otherwise, hardly be a ground for transfer.
9. In any view of the matter, I do not find any cogent reason to direct transfer of the G.R. Case in terms of Section 407, Cr. P.C. The petition is accordingly dismissed.
