Sabyasachi Mishra vs Lopamudra Mishra
2022 Latest Caselaw 6206 Ori

                                                     // 1 //




                         IN THE HIGH COURT OF ORISSA AT CUTTACK
                                   TRPCRL No. 12 of 2018

              An application under Section - 407 of the Code of Criminal
              Procedure .

                      Sabyasachi Mishra                    ....                      Petitioner

                                                      Versus
                      Lopamudra Mishra                  ....                        Opp. Party


                    Advocates appeared in this case through Hybrid Mode :

                    For Petitioner               : Ms. Itishree Tripathy, Advocate
                                            on behalf of Mr. B.K. Sharma, Advocate


                    For Opp. Party               : Mr. R.K. Acharya, Advocate


                 CORAM:
                      JUSTICE SAVITRI RATHO
              ..................................................................................

Date of Judgment : 01.11.2022 ...................................................................................

Savitri Ratho, J. This transfer application under section 407 of Cr.P.C. has

been filed by the petitioner-husband Sabyasachi Mishra for transfer of

I.C.C. (GN) No.27 of 2017 filed by the opposite party -wife -

against him for alleged commission of offences punishable under

Section - 500 of the Indian Penal Code (in short "I.P.C."), in the

Court of the learned Nyayadhikari, Gram Nyayalaya, Ghasipura,

Keonjhar, to the Court of learned S.D.J.M., Bhubaneswar.

// 2 //

2. Apart from the transfer application, learned counsel for

the petitioner has filed I.A. No. of 2022 enclosing medical documents

and an affidavit dated 22.9.2022 of the petitioner indicating the status

of the cases involving the parties pending in Bhubaneswar. A written

note of submission has also been filed by the learned counsel for the

petitioner.

The learned counsel for the opp. party - wife has filed a

counter affidavit dated 19.09.2022 as well as a memo dated

09.09.2022 enclosing the order sheet in I.C.C. (GN) No.27 of 2017

containing orders passed on 18.10.2017, 04.12.2017, 30.04.2018, and

18.09.2019 as well as the deposition of P.W.1.

3. On the consent of the counsels for the parties, the matter

was taken up for final disposal.

4. I have heard Ms. Itishree Tripathy, learned counsel

appearing on behalf of Mr. Bigyan Sharma, learned counsel for the

petitioner-husband and Mr. R.K. Acharya learned counsel for the opp.

party - husband and perused the petitions and the affidavits and their

annexures.

5. Ms. Tripathy, learned counsel has submitted that marriage of

the petitioner and opp. party has been solemnized on 02.01.2006 at

Hotel Marion, Bhubaneswar and they were blessed with a son on

// 3 //

01.12.2010, who is now prosecuting his studies in Sai International

School, Bhubaneswar. The opposite party is staying in Bhubaneswar

in rented accommodation since 2016. Referring to Annexure-1 in the

I.A., which is a copy of the petition in Execution Misc. Case No.24 of

2021 arising out of C.M.C. No.356 of 2016 pending in the Court of

the learned S.D.J.M., Bhubaneswar where in the affidavit sworn on

10.11.2021 the address of the opposite party has been indicated to be

in Bhubaneswar and she has submitted that the opposite party is

staying in Bhubaneswar and attending to her cases in Bhubaneswar

but is opposing the prayer for transfer, only to harass the petitioner.

Six cases involving the parties or their family members are pending in

Bhubaneswar and five of these cases are at the instance of the

opposite party-wife, and as she is participating in the proceedings.

The six cases pending in Bhubaneswar are :

(i) CMC No.356 of 2016 pending in the Court of learned

S.D.J.M., Bhubaneswar initiated by the opp. party - wife,

where order for payment of monthly maintenance to her and

their son has been passed ;

(ii) C.T. Case No.2114 of 2016 pending in the Court of learned

S.D.J.M., Bhubaneswar at the instance of the wife where

trial has started ;

// 4 //

(iii) C.T. Case No.2728 of 2016 pending in the Court of learned

S.D.J.M., Bhubaneswar corresponding to Badagada P.S.

Case No.164 of 2016 against the petitioner where

investigation is in progress ;

(iv) C.T. Case No.2899 of 2016 pending in the Court of learned

S.D.J.M., Bhubaneswar arising out of Badagad P.S. Case

No.171 of 2016 where father of the petitioner is an accused

and investigation is in progress ;

(v) Cr.P. No.27 of 2019 filed by the opposite party - wife under

Section - 125 Cr.P.C., pending in the Court of learned

Judge, Family Court, Bhubaneswar, where the petitioner has

received notice ; and

(vi) C.P. No.589 of 2022 in the Court of learned Judge, Family

Court, Bhubaneswar filed by the petitioner for divorce

where summons has been issued to the opposite party - wife

for her appearance.

6. She has further submitted that the complaint case has been

instituted by the opposite party in Ghasipura alleging commission of

offence under Section - 500 I.P.C. on the basis of an email sent by the

petitioner to the opposite party on 02.06.2016, though such offence is

not made out. Trial in the said case has started. On 20.09.2019, this

// 5 //

Court had directed for stay of further proceedings in I.C.C. (GN)

No.27 of 2017 and this interim order has been extended on

01.11.2019 and 08.11.2019. The interim order was again extended.

Vide order dated 30.04.2018, the petitioner has been permitted to be

represented through his counsel but the order is a conditional one

where one of the conditions is that he will appear personally in the

Court when required. P.W.1 had already been examined on

18.09.2019. No other witness has been examined after that. Referring

to the medical documents annexed to I.A. No. 21 of 2022, she has

submitted that the petitioner has been diagnosed to be suffering from

Acute Necrotizing pancreatic (modified CTSI-8) Dyslipidemia since

August 2020 and this developed to Chronic pancreatitis for which he

has undergone Plastic Stenting on three occasions, i.e., on 06.07.2021,

16.11.2021 and 02.03.2022 and he is still under treatment for which

travelling to Ghasipura will be inconvenient for him. He is also

apprehensive of going to Ghasipura. As six cases are pending

between the parties are pending in Bhubaneswar, in which the

opposite party is participating, she will not face any inconvenience if

1.C.C. (GN) No. 27 of 2017 is also transferred to Bhubaneswar. But

the 1.C.C. case has been filed in Ghasipura only to harass him.

// 6 //

7. Mr. Acharya, learned counsel for the opposite party-wife

has opposed the prayer for transfer and submitted that the house rent

agreement pertaining to a house in Bhubaneswar relied on by the

petitioner has expired since 2019 and the opposite party is now

residing in Ghasipura in the house of her parents. He has further

submitted that by order dated 30.04.2018 application of the petitioner

filed under Section - 205 Cr.P.C. has been allowed and he has been

permitted to be represented by his counsel (the said order is contained

in the ordersheet filed alongwith the Memo) and after that P.W.1 has

been examined and cross examined by the petitioner. So the petitioner

should not face any difficulty to contest the case if it continues in

Ghasipura, Keonjhar. He has further submitted that as cause of action

of the case had arisen under the jurisdiction of the Court in Ghasipura,

for which the complaint case has rightly been filed at Ghasipura, and

as the witnesses of the opposite party reside in Ghashipura, they

would be put to unnecessary inconvenience if the case is transferred

to Bhubaneswar. The opposite party has however not disputed the

health condition of the petitioner or the treatment undergone by him.

8. Section 407 of the Code of Criminal Procedure, 1973,

deals with the power of the High Court to transfer a case or appeal, or

class of cases or appeals, from one Criminal Court subordinate to its

// 7 //

authority to any other such Criminal Court of equal or superior

jurisdiction. Section 407 of the Cr.P.C. is extracted below :

407. Power of High Court to transfer cases and appeals. (1) Whenever it is made to appear to the High Court-

(a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or

(b) that some question of law of unusual difficulty is likely to arise, or

(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-

(i) that any offence be inquired into or tried by any Court not qualified under sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence;

(ii) that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction;

(iii) that any particular case be committed for trial to a Court of Session; or

(iv) that any particular case or appeal be transferred to and tried before itself.

(2) The High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative: Provided that no application shall lie to the

// 8 //

High Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him.

(3) Every application for an order under sub- section (1) shall be made by motion, which shall, except when the applicant is the Advocate- General of the State, be supported by affidavit or affirmation.

(4) When such application is made by an accused person, the High Court may direct him to execute a bond, with or without sureties, for the payment of any compensation which the High Court may award under sub- section (7). (5) Every accused person making such application shall give to the Public Prosecutor notice in writing of the application, together with copy of the grounds on which it is made; and no order shall be made on of the merits of the application unless at least twenty- four hours have elapsed between the giving of such notice and the hearing of the application. (6) Where the application is for the transfer of a case or appeal from any subordinate Court, the High Court may, if it is satisfied that it is necessary so to do in the interests of justice, order that, pending the disposal of the application, the proceedings in the subordinate Court shall be stayed, on such terms as the High Court may think fit to impose: Provided that such stay shall not affect the subordinate Court' s power of remand under section 309. (7) Where an application for an order under sub- section (1) is dismissed, the High Court may, if it is of opinion that the

// 9 //

application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider proper in the circumstances of the case. (8) When the High Court orders under sub- section (1) that a case be transferred from any Court for trial before itself, it shall observe in such trial the same procedure which that Court would have observed if the case had not been so transferred.

(9) Nothing in this section shall be deemed to affect any order of Government under section 197.

9. A perusal of the provision reveals that the power under Section

- 407 of the Cr.P.C. can be exercised by the High Court, to transfer a

particular case or appeal, or class of cases or appeals, be transferred

from a Criminal Court subordinate to its authority to any other such

Criminal Court of equal or superior jurisdiction, if the High Court is

satisfied that a fair and impartial inquiry or trial cannot be held in the

said court subordinate to it ; or some question of law of unusual

difficulty is likely to arise in the case ; or 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.

// 10 //

In the instant case, the prayer for transfer is to be

considered in terms of Section 407 (1) (c) of the Cr.P.C. which

provides for transfer of a criminal case if such an order will tend to

the general convenience of the parties or witnesses or is expedient for

the ends of justice. The convenience of all the parties including the

witnesses should be kept in mind, while considering the prayer for

transfer of a criminal case on the ground of inconvenience of any

particular party. A balance has to be struck so that while making it

convenient for one party, the other party or the witnesses do not suffer

serious inconvenience. In the present case, the factors/which are

required to be considered are :

i) The present health condition of the petitioner who is

staying in Bhubaneswar.

ii) The pendency of six cases in Bhubaneswar involving the

parties and/or their relatives.

iii) Son of the petitioners' is studying in a school in

Bhubaneswar.

iv) Distance of 400 kms between Bhubaneswar and

Ghasipura.

v) The witnesses of the complainant - opposite party

belong to Ghasipura and only one has been examined.

// 11 //

vi) Application of the petitioner filed under Section -205

Cr.P.C. has been allowed, subject to certain conditions.

10. Considering the submissions of the learned counsels, the

provisions of Section - 407 (1) (c) of the Cr.P.C., the health

condition of the petitioner, the place of residence of the witnesses of

the opposite party, and the comparative convenience/inconvenience

which will be faced by the parties if the case is allowed to continue in

Ghasipura or in the event it is transferred to Bhubaneswar, I feel that

it would cater to the convenience of the parties and would also be

expedient in the interest of justice if I.C.C. (GN) No.27 of 2017 is

transferred to the court of learned S.D.J.M., Bhubaneswar, but after

the examination and cross-examination of the remaining two

witnesses of the opposite party - wife, are completed in the Court of

the learned Nyayadhikari, Gram Nyalalaya, Ghasipura.

11. The TRP (CRL) is accordingly allowed. The learned trial

court, i.e. the learned Nyayadhikari, Gram Nyalalaya, Ghasipura shall

proceed with the examination and cross examination of the witnesses

of the complainant wife and within two weeks thereafter, transfer the

records of I.C.C. (GN) No.27 of 2017 (Lopamudra Mishra vs.

Sabyasachi Mishra) to the Court of the learned S.D.J.M.,

Bhubaneswar.

// 12 //

12. With the aforesaid observations, the TRP (CRL) is

disposed of.

13. Before parting with the case, I would be failing in my

duty if I do not mention that Ms. Tripathy, learned counsel who

conducted the case on behalf of the petitioner is a new entrant to the

profession, but has conducted the case very efficiently.

14. Urgent certified copy of this order be granted on proper

application.

15. Copy of this order be communicated to the learned

Nyayadhikari, Gram Nyalalaya, Ghasipura and learned S.D.J.M.,

Bhubaneswar forthwith.

.........................

(Savitri Ratho) Judge

Orissa High Court, Cuttack Dated 1st November, 2022 / Sukanta