IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI THURSDAY, THE THIRTEENTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FIVE -O' XI qiv 1, PRESENT THE HON’BLE SRI JUSTICE V. GOPALA KRISHNA RAO TRANSFER CRIMINAL PETITION NO: 98 OF 2023 Between: Smt. Priyadarshini Patnaik, D/o. Sarat Chandra Patnaik, Aged 27 years, Hindu, W/o.Lala Mohan Mahapatro, Rajuguru street, Parlakhemundi (PO) and (M) Gajapathi District, Odisha State 761200 ...PETITIONER AND 1. The State of Andhra Pradesh, rep. by its Public Prosecutor,A.P. High Court, Amaravathi. 2. Laia Mohan Mahapatro, S/o. Dukhi Shyam Mahapatro, aged 39 years. Previously worked as Petty officer. Electrical Radio INS KULISH, Visakhapatnam (at the time Of offence) Present address : Lalamohan Mohapatra S/o. Dukhishyam Mohapatra aged 39 years. Working at Branch Manager Currency Chest, Jagmara J/3, Revenue plot No. 1561(p) Jagmara, Khandagiri, Bhubaneswar 751630 Odisha State. 3. Dukhi Shyam Mahapatro, S/o.Pitanas Mahapatro, Aged 65 years, Hindu R/o. D No.23-2-16, Chandrapur, Sastry nagar village, (Chandpur) Nayagarh District, Odisha State. 4. Ninima Rani Mahapatro, W/o. Dukhishyam Mahapatro, House wife, Aged 60 years, Hindu R/o. D No.23-2-16, Chandrapur, Sastry nagar . ^ village, (Chandpur) Nayagarh District, Odisha r ...RESPONDENTS Petition under Section 407 of Cr.P.C, praying that the the High Court may be pleased to order withdraw and transfer of C.C. No. 569/2017 on the file of the 1®' Additional Chief Metropolitan Magistrate at Visakhapatnam to Judicial First Class Magistrate at Pathapatnam, Srikakulam District and for disposal in accordance with law. (Judicial First Class Magistrate at Srikakulam is amended as Judicial First Class Magistrate, Pathapatnam, Srikakulam as per the Court order dated 04.12.2024 in I.A No.01 of 2024 in TR.CRLP. No.98/2023) I.A. NO: 1 OF 2023 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay all and further proceedings in C.C. No. 569/2017 on the file of the 1st Addl. Chief Metropolitan Magistrate at Visakhapatnam, pending disposal of the transfer criminal Petition Counsel for the Petitioner : SRI PEDDADA VIMALA DESAI Counsel for the Respondents : PUBLIC PROSECUTOR (AP) The Court made the following ORDER : THE HON’BLE SRI JUSTICE V.GOPALA KRISHNA RAO TRANSFER CRIMINAL PETITION No.98 of 2023 ORDER: The petitioner herein have filed the present petition under Section 407 of the Code of Criminal Procedure seeking to withdraw C.C.No.569 of 2017, on the file of the I Additional Chief Metropolitan Magistrate at Visakhapatnam and transfer the same to the Judicial First Class Magistrate at Srikakulam. 2. The case of the petitioner in brief is as follows; The marriage of the petitioner with the respondent No.2 is performed on 06.07.2014 at Bulgam and they used to reside at Visakhapatnam. Due to harassment made by the respondent No.2 and his family members the petitioner is staying at her parents’ house at Parlakhemudi, Odisha State. The petitioner pleaded the she had lodged a complaint before the SHO/women Police Station, Visakhapatnam City vide FIR No.76 of 2016, under Section 498(A) r/w 34 IPC and under Sections 3 & 4 of the Dowry Prohibition Act and after completion of the investigation, the same was numbered as C.C.No.569 of 2017 on the file of the I Additional Chief Metropolitan Magistrate, Visakhapatnam. 2 ■N II. The contention of the petitioner is that in between both the parties, around six (06) cases are pending at Parlakhemudi Odisha State and as such the petitioner filed the present Transfer Criminal Petition seeking to withdraw C.C.No.569 of 2017, on the file of the I Additional Chief Metropolitan Magistrate at Visakhapatnam and transfer the same to the Judicial First Class Magistrate, Srikakulam, which is nearer to Parlakhemudi, Odisha State. Learned counsel for the petitioner further contend that if the case in C.C.No.569 of 2017, on the file of the I Additional Chief Metropolitan Magistrate at Visakhapatnam is transferred to the Judicial First Class Magistrate, Pathapatnam in Srikakulam District, it would be convenient to both the parties for attending the case proceedings before the Court at Pathapatnam. 3. Fleard Sri P.Vimala Desai, learned counsel for the petitioner, learned Public Prosecutor appearing for the State and perused the record. 4. Learned Public Prosecutor contends that on the basis of the complaint lodged by the petitioner herein a case in Cr.No.76 of 2016, under Section 498(A) r/w 34 I PC and under Sections 3 & 4 of the Dowry Prohibition Act, was registered by the SFIO/Women ii Police Station, Visakhapatnam and after completion of the 3 investigation the Police had filed Charge Sheet vide C.C.No.569 of 2017, on the file of the I Additional Chief Metropolitan Magistrate at Visakhapatnam. The learned Public Prosecutor would further contend that there are two independent witnesses, who are cited the witness Nos.4 and 5 in the Charge Sheet and are residing at Visakhapatnam. Further, the distance between Visakhapatnam and Pathapatnam is at about 150kms and as such it is very difficult for the independent witnesses to attend the case proceedings, if the case in C.C.No.569 of 2017 is transferred from the I Additional Chief Metropolitan Magistrate at Visakhapatnam to Judicial First Class Magistrate at Pathapatnam, Srikakulam District. During the course of hearing, learned counsel for the petitioner had placed reliance on the Judgment of the Hon’ble Apex Court in Jayendra Saraswathy Swamigal, T.N Vs. State of T.N and Ors.\ wherein the Apex Court held as follows: as 5. “25. The next question which arises for consideration is as to where the sessions case should be transferred. Shri F.S. Nariman, learned senior counsel for the petitioner, has submitted that the case may be transferred to any adjoining district like Chittoor, Nellore, Cuddapah or Tirupati in the State of Andhra Pradesh as about one-third of the judicial officers in the said State and particularly in the aforesaid districts are conversant with Tamil language. It is also submitted that in view of Section 277 Cr.P.C. if the witness does not give statement in the language of the Court, a translation of the evidence in the language of the Court has to be prepared as the examination of the witness proceeds and, therefore, transferring the case to a district which is not Tamil speaking is also permissible under law. Dr. Rativ Dhawan, learned counsel for the respondents, has 1 ^ AIR 2006 Supreme Court 6 4 submitted that if at all the case is transferred, it should be transferred to Pondicherry as the language spoken there is Tamil and it is only at a distance of 70 kms. from Kanchipuram. In opinion, while directing transfer of a criminal case the language spoken by the witnesses assumes great importance translation of deposition of a witness apart from being a difficult job, often does not carry the same sense which the witness wants to convey. The convenience of the prosecuting agency, especially in a case where there are large number of witnesses and documents, has also our as an important bearing. We are, therefore, of the opinion that the case may be transferred to Pondicherry as there will be no difficulty in recording the evidence in the same language in which almost all the witnesses would depose and with which the presiding judge would be familiar. It is only at a short distance from Kanchipuram and the witnesses would not face much inconvenience in going there. 6. Learned counsel for the petitioner has further placed reliance on the Judgment of the Hon’ble Apex Court in Mrudul M.DamIe and Anr, Vs.C.B.I., New Delhi^, wherein the Apex Court held follows: as “9. Similarly, in Shree Baidyanath Ayurved Bhawan Pvt Ltd. V. State of Punjab and Ors. (2009) 9 SCC 414,(2009 Cri LJ 4107), this Court held that the convenience of the parties including the witnesses to be produced at the trial is a relevant consideration while directing transfer of criminal case from one Court situated In one State to another situated in another State.” 7. As seen from the charge sheet, the petitioner herein is cited as the witness in the charge sheet and along with her, there two other independent witnesses. According to the case of the prosecution, the said two independent witnesses are residing at Visakhapatnam and the petitioner herein is the de-facto are ^ 2012CRI.LJ.284l 5 complainant and she had lodged a complaint before the SHOA/Vomen Police Station at Visakhapatnam against the respondent Nos.2 to 4 and at the time of lodging the said complaint the petitioner is residing at Visakhapatnam. The learned counsel for the petitioner would contend that at present the petitioner got shifted her residence from Visakhapatnam to Parlakhemudi, Gajapathi District at Odissa State. 8. It is well settled that while considering the transfer of a Criminal Case, the transfer of the case has to be accepted in exceptional cases, considering the fact that the transfers may unnecessarily aspirations on the State Judiciary and the Prosecution Agency. The Apex Court in a case of Nahar Singh Yadav & Anr Vs Union of India & ors^ held as follows: 24.Thus, although no rigid and inflexible rule or test could be laid down to decide whether or not power under Section 406 of the Cr.P.C. should be exercised, it is manifest from a bare reading of sub-sections (2) and (3) of the said Section and on an analysis of the decisions of this Court that an order of transfer of trial is not to be passed as a matter of routine or merely because an interested party has expressed some apprehension about the proper conduct of a trial. This power has to be exercised cautiously and in exceptional situations, where it becomes necessary to do so to provide credibility to the trial. Some of the broad factors which could be kept in mind while considering an application for transfer of the trial are; (i) when it appears that the State machinery or prosecution is acting hand in glove with the accused, and there is likelihood of miscarriage of justice due to the lackadaisical attitude of the prosecution; ^ 2011 (1) see 307 6 (ii) when there is material to show that the accused may influence the prosecution witnesses or cause physical harm to the complainant; (iii) comparative inconvenience and hardships likely to be caused to the accused, the complainant/the prosecution and the witnesses, besides the burden to be borne by the State Exchequer in making payment of travelling and other expenses of the official and non-official witnesses: (iv) a communally surcharged atmosphere, indicating some proof of inability of holding fair and impartial trial because of the accusations made and the nature of the crime committed by the accused; and (v) existence of some material from which it can be inferred that the persons are so hostile that they are interfering or are likely to interfere either directly or indirectly with the course of justice.” i some 9. In the case on hand, it is observed that admittedly, the petitioner is the de-facto complainant and she lodged a complaint before the SHO/women Police Station, Visakhpatanam City vide FIR No.76 of 2016, under Section 498(A) r/w 34 IPC and under Sections 3 & 4 of the Dowry Prohibition Act and after completion of the investigation, the Police has filed charge sheet and the was numbered as C.C.No.569 of 2017, on the file of the I Additional Chief Metropolitan Magistrate, Visakhapatnam, which is pending for adjudication. As rightly stated by the learned Public Prosecutor, there are two independent witnesses in the aforesaid case and they are residing at Visakhapatnam. Therefore, on the ground that one of the witnesses i.e., the de-facto complainant had shifted his or her residence from one place to another place; the criminal case cannot be transferred to that place because the presence of the petitioner same 7 i.e., de-facto complainant before the Criminal Court is required only on one occasion i.e., on the date of giving the evidence. The entire prosecution would be looked after by the learned Public Prosecutor of the Jurisdictional Court. 10. Learned counsel for the petitioner had also drawn the attention of this Court that there are six (06) cases in between both the parties are pending at Parlakhemudi, Odissa State. As stated supra the case in C.C.No.569 of 2017 is on the file of the I Additional Chief Metropolitan Magistrate at Visakhapatnam cannot be transferred on the ground of shifting of the residence by one witness from one place to another place. Moreover, the presence of the petitioner as a witness is required on only one occasion i.e., on the date of giving evidence. In view of the aforesaid reasons, I do not find any merit and 11. subsistence in the contentions taken by the petitioner and as such the present Transfer Criminal Petition is liable to be dismissed as devoid of merit. With the above observations, the Transfer Criminal Petition is 12. dismissed. There shall be no order as to costs. As a sequel, miscellaneous petitions, if any pending and the Interim order granted earlier, if any, shall stand closed. SD/- B.PRASADARAO ASSISTANT REGISTRAR I SECTION ( //TRUE COPY// OFFICER To, 1. The I Additional Chief Metropolitan Magistrate at Visakapatnam. 2. The Judicial First Class Magistrate at Pathapatnam, Srikakulam District. 3. One CC to SRI. PEDDADA VIMALA DESAI Advocate [OPUC] 4. Two CCs to the Public Prosecutor High Court of Andhra Pradesh at Amaravathi [OUT] 5. THREE CD COPIES TAC HIGH COURT DATED: 13/02/2025 ORDER TRCRLP.No.98 of 2023 I 2 0 MAR 2025 Current becuon a DISMISSING THE TR.CRLP