Allowed

Smt Surisettimanika v. Dr Surisetti Vidya Sagar

Andhra Pradesh HC7 Jan 2024TRCRLP/85/2023

Case brief

AI extract

What is this about?

Transfer Criminal Petition filed seeking transfer of SC No.27 of 2021 from Amalapuram to Visakhapatnam due to witness convenience. Court applied Section 407 Cr.P.C. considering ease of attendance and found grounds for transfer to Visakhapatnam.

What did the court decide?

SC No.27 of 2021 transferred from Assistant Sessions Court, Amalapuram to Principal Assistant Sessions Judge's Court, Visakhapatnam.

Smt Surisettimanika Vs Dr Surisetti… — Civil Procedure and Limitation | Andhra Pradesh HC (2024)

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HON’BLE SRI JUSTICE BANDARU SYAMSUNDER TRANSFER CRIMINAL PETITION NO.85 of 2023

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ORDER:

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I have heard learned Counsel for the petitioner Ms.T.V.Sridevi as well as learned Counsel for the respondent Nos.1 to 3 Mr.Raja Reddy, Koneti.

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2. This Transfer Criminal Petition is filed by the petitioner under Section 407 of the Criminal Procedure Code (in short, ‘Cr.P.C’), seeking transfer of SC No.27 of 2021 on the file of Assistant Sessions Judge’s Court at Amalapuram to Assistant Sessions Judge’s Court, Visakhapatnam or to any other competent Court at Visakhapatnam.

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3. The case of the petitioner in brief, is that her marriage with the 1^st respondent solemnized on 24.05.2014 in a hotel at Visakhapatnam, and at that time her parents gave a dowry to the 1^st respondent. The petitioner submits that the 1^st respondent used to take all her earnings while she was working at Vijeta Hospital, Visakhapatnam and then in the month of March, 2018 the respondent Nos.1 to 3 have demanded additional dowry of Rs.20,00,000/- from her

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parents’, which they could not fulfil. Then, the 1^st respondent got employment at Area Hospital, Amalapuram, where he worked for few days and started harassing her to sell the flat at Kommadi of Visakhapatnam. It is also the contention of the petitioner that on 28.04.2019 the 1^st respondent abused her in filthy language for not accepting his proposal to sell the flat at Kommadi, and then after returning to the house, he abused her along with his parents, beat her and attempted to kill her. Then, the petitioner lodged a report before the Station House Officer, Amalapuram Police Station, vide Crime No.126 of 2019 for the offences punishable under Sections 498-A and 307 read with 109 of IPC and Sections 3 and 4 of Dowry Prohibition Act, on the basis of said report, the Station House Officer investigated the case and filed charge sheet against the respondent Nos.1 to 3 for the offences punishable under Sections 498-A and 307 read with 109 of IPC and Sections 3 and 4 of Dowry Prohibition Act, which is subject matter in SC No.27 of 2021 on the file of Assistant Sessions Judge’s Court, Amalapuram. The petitioner further submits that she filed DVC No.138 of 2022 before II Additional Chief Metropolitan Magistrate Court at Visakhapatnam against the respondent

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Nos.1 to 3, and filed suit for recovery of amounts and articles, which is pending registration before Family Court, Visakhapatnam. The main contention of the petitioner is that SC No.27 of 2021 on the file of Assistant Sessions Judge’s Court, Amalapuram is coming up for trial, wherein out of 17 prosecution witnesses, 11 witnesses are residents of Visakhapatnam, who are LW.6, LW.8, LW.9, LW.12, LW.16, LW.17, LW.18, LW.19, LW.20, LW.22 and LW.23, who are senior citizens, they are not in a position to come down to Amalapuram to depose before the Court and if they failed to attend the Court at Amalapuram to give evidence, there will not be any fair trial and it will affect her case. She also stated that at the time of registration of the case, the 1^st respondent was working as Government Doctor in Area Hospital at Amalapuram, where he has got support and influence, and whenever she is attending the Court at Amalapuram, the 1^st respondent is threatening her to withdraw the case. She also submits that at present, the respondent Nos.1 to 3 are also residing at Visakhapatnam and at present the 1^st respondent is working as Civil Assistant Surgeon, Community Health Center, Kotauratla, Anakapalli District and attending the duties by

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residing at Visakhapatnam, who is also attending the Court in DVC case, due to that if Sessions case is transferred to Visakhapatnam, there will not be any prejudice or inconvenience to the respondent Nos.1 to 3 or to the witnesses, and it will meet the ends of justice. She prays to allow the petition.

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4. The 1^st respondent filed counter, denying the averments in the affidavit of the petitioner, which is adopted by the respondent Nos.2 and 3,. It is the contention of the 1^st respondent that the petitioner is wilfully and wantonly avoiding to appear the Court whenever schedule of the Sessions case was fixed, due to her absence the schedule was cancelled several times. He submits that he was newly recruited Medical Officer, who joined service on 31.01.2019 at Amalapuram, where he resided as said place was his first posting, and even before that the petitioner had deserted him and living separately for a long time. It is also the contention of the 1^st respondent that after the petitioner came to know that he shifted to Amalapuram, she dishonestly misled him and tricked him into believing that she had changed and thus she came to

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live with her in Amalapuram and then soon after her arrival, she filed false case on 29.04.2019 with pre-plan. The main contention of the 1^st respondent is that it is not at all equitable for him to transfer the case to Visakhapatnam, as the participants of the proceedings would be compelled by the petitioner’s father, using his illegal clout to act against him and his interest. He submits that the case is commenced before the Court at Amalapuram in 2019, wherein he has been attending the proceedings all these four years and the petitioner never uttered a request for transfer till filing frivolous petition, which affect his interest and if the case is transferred to Visakhapatnam, he would suffer irreparable loss

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and great hardship. It is also the contention of the 1^st respondent that if the trial is conducted at Amalapuram, where the alleged incident said to have been taken place, it is convenient for the Court to appreciate the evidence and dispose of the case. He prays to dismiss the petition.

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5. The 4^th respondent/State, representing by the Public Prosecutor filed counter-affidavit of the Sub-Inspector of Police, Amalapuram Town Police Station, reiterating the

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contention of the petitioner in her affidavit. They have stated that as of now the petitioner filed the present transfer petition, as another case is pending within the jurisdiction of Visakhapatnam. They pray to pass appropriate orders.

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6. The petitioner also filed reply affidavit, stating that the dowry harassment started by the respondent Nos.1 to 3 started at Visakhapatnam immediately after her marriage, as the 1^st respondent used to take all her earnings. She submits that as specific incident has taken place on 28.04.2019 when she was residing with the 1^st respondent at Amalapuram, she lodged report. It is also the contention of the petitioner that in SC No.27 of 2021, the prosecution has cited as many as 28 witnesses, out of 28 prosecution witnesses, LW.6, LWs.8 to LW.23 are from Visakhapatnam and many of the witnesses are senior citizens with multiple health issues, out of them LW.17, LW.18 and LW.19 are suffering from old age ailments, and they are unable to travel from Visakhapatnam, whereas LW.22/Budda Sivaja recently admitted in Apollo Hospital at Visakhapatnam. She submits that LW.2/A.Venkateswara Rao, who was residing at Amalapuram working as Senior Lecturer

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transferred from Amalapuram to Andhra University, Visakhapatnam and LW.4, LW.5 and LW.6 are not residing at Amalapuram, and LW.27/Sub-Inspector of Police, LW.28/Circle Inspector and LW.26/Dr.V.R.K.Murthy, Medical Officer also transferred from Amalapuram to other places, and most of the witnesses are residing in and around Visakhapatnam, it will also be convenient for the witnesses to appear before the Court at Visakhapatnam. She categorically stated that now the respondent Nos.1 to 3 are residing at Visakhapatnam, due to that if SC No.27 of 2021 on the file of Assistant Sessions Judge’s Court, Amalapuram is transferred to competent Sessions Court at Visakhapatnam, it will be convenient to all the parties as well as the witnesses to attend the Court. She prays to allow the petition.

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7. The learned Counsel for the petitioner would submit that as the 1^st respondent is previously working at Amalapuram though dowry harassment was continued right from the date of marriage, the specific incident occurred at Amalapuram, due to that the petitioner lodged report before the Station House Officer, Amalapuram Police Station. She would further submit

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that the respondent Nos.1 to 3 are now residing at Visakhapatnam though the 1^st respondent is working in Community Health Center in a village at Anakapalli District. She argued that most of the prosecution witnesses shown in SC No.27 of 2021 are now not residing at Amalapuram, who are residing in or around Visakhapatnam. She prays to allow the petition.

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8. The learned Counsel for the respondent Nos.1 to 3 would submit that the petitioner without attending the Court in SC No.27 of 2021, seeking for transfer of the case, though it is pending since the year 2019. He would further submit that the 1^st respondent being Medical Officer is not residing at Visakhapatnam, but he is residing at his work place in Anakapalli District, which is at a distance of 100 kms from Visakhapatnam, due to that it is not convenient for him to attend the Court at Visakhapatnam. He argued that the respondent Nos.1 to 3 are intending to examine the defence witnesses, who are residing at Amalapuram to disprove the allegations made against them by the petitioner, and if the request of the petitioner to transfer the case is considered, it

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would cause great prejudice to the contention of the respondent Nos.1 to 3. It is the contention of the learned Counsel for the respondent Nos.1 to 3 that as specific incident alleged to have been occurred at Amalapuram, the Assistant Sessions Court is having jurisdiction to try the case. He prays to dismiss the petition.

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9. Now the point that emerges for consideration of this Court is:-

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" Whether there are any grounds to transfer SC No.27 of 2021 on the file of Assistant Sessions Judge’s Court, Amalapuram of East Godavari Judicial District to Assistant Sessions Judge’s Court at Visakhapatnam?"

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10. POINT:

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Before going to the merits of the case, it would be beneficial to quote Section 407 of Cr.P.C, which reads as under:

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“407. Power of High Court to transfer cases and appeals.

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(1) Whenever it is made to appear to the High Court-

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

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

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(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-

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(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;

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(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;

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

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

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(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 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.

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(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.

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(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).

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(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

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the application unless at least twenty- four hours have elapsed between the giving of such notice and the hearing of the application.

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(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.

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(7) Where an application for an order under sub- section (1) is dismissed, the High Court may, if it is of opinion that the 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.

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(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.

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

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11. The Hon’ble Apex Court in Nahar Singh Yadav vs. Union

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of India¹ , held at para 29, which reads as under:-

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"29. Thus, although no rigid and inflexible rule or test could be laid down to decide whether or not power under Section 406 CrPC should be exercised, it is manifest from a bare reading of subsections (2) and (3) of the said section and on an analysis of the

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1 (2011) 1 SCC 307

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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:

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(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;

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(ii) when there is material to show that the accused may influence the prosecution witnesses or cause physical harm to the complainant;

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(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 nonofficial witnesses;

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(iv) a communally surcharged atmosphere, indicating some proof of inability of holding fair and impartial trial because of the accusations made and

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the nature of the crime committed by the accused; and

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(v) existence of some material from which it can be inferred that some persons are so hostile that they are interfering or are likely to interfere either directly or indirectly with the course of justice.”

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(Emphasis supplied)

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12. In the present case, admittedly the petitioner herein is legally wedded wife of the 1^st respondent and the respondent Nos.2 and 3 are parents-in-laws of the petitioner, who are aged 63 years and 53 years respectively. It is also not in dispute that basing on alleged incident on 28.04.2019, the petitioner herein lodged a report before the Station House Officer, Amalapuram Police Station against the respondent Nos.1 to 3, who registered the case for the offences punishable under Sections 498-A and 307 read with 109 of IPC and Sections 3 and 4 of Dowry Prohibition Act, and after due investigation, the Station House Officer filed charge sheet against the respondent Nos.1 to 3, which was also taken on file and pending consideration as SC No.27 of 2021 on the file

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of Assistant Sessions Judge’s Court, Amalapuram and the official witnesses cited in the said case, are now not residing at

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Amalapuram, who got transferred to different places. It is also the contention of the petitioner that some of the witnesses to speak about the allegations made against the respondent Nos.1 to 3 are old aged people residents of Visakhapatnam, who are not in a position to travel from Visakhapatnam to Amalapuram. It is not in dispute that now the 1^st respondent is working as Civil Assistant Surgeon, Community Health Center, Kotauratla of Anakapalli District. The petitioner has shown in her petition that the respondent Nos.1 to 3 are now residing at Visakhapatnam.

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13. A perusal of counter-affidavit filed by the 1^st respondent, which is adopted by the respondent Nos.2 and 3 also shows that the 1^st respondent is a resident of Visakhapatnam. There is no denial on the part of the 1^st respondent with regard to contention of the petitioner that out of 17 prosecution witnesses, 11 witnesses are residents of Visakhapatnam, out of them LW.6, LW.8, LW.9, LW.12, LW.16, LW.17, LW.18, LW.19, LW.20, LW.22 and LW.23 are senior citizens, who are residing at Visakhapatnam. In reply affidavit, the petitioner also stated that now LW.2/A.Venkateswara Rao transferred to Andhra University, Visakhapatnam and other official witnesses,

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including Medical Officer also transferred from Amalapuram, who have to attend the Court at Amalapuram in SC No.27 of 2021 if trial is continued there. As per the ratio laid down by the Hon’ble Apex Court in Nahar Singh Yadav case referred supra , while considering transfer of the criminal cases, this Court has to consider 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.

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14. A perusal of copy of charge sheet filed by the petitioner along with petition, which shows that most of the witnesses to speak about alleged dowry harassment by the respondent Nos.1 to 3 are residents of Visakhapatnam. Further, LW.2/ A.Venkateswara Rao, who was working as Senior Lecturer is residing at Amalapuram, now said to be transferred to Visakhapatnam. It is also not in dispute that most of the official witnesses, including Investigating Officer transferred to some other places, not working at Amalapuram, due to that

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they have to attend the Court from other places either to Amalapuram or to Visakhapatnam. Even otherwise, the

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respondent Nos.1 to 3 are shown to be residing at Visakhapatnam in the petition filed by the petitioner. The counter-affidavit of the 1^st respondent supports the contention of the petitioner that even the 1^st respondent is now working in a village at Anakapalli District, which is within the Judicial District of Visakhapatnam, nearer to Visakhapatnam than Amalapuram. The 1^st respondent is also said to be attending the Court at Visakhapatnam in DVC No.138 of 2022 filed by the petitioner, due to that it is convenient for the petitioner and also to the respondent Nos.1 to 3/accused to attend the Court at Visakhapatnam if the request of the petitioner to transfer the Sessions case is considered. Even, it is also convenient for the prosecution to produce the witnesses without any delay, as most of the witnesses with regard to alleged dowry harassment are residing at Visakhapatnam. To consider the argument of the learned Counsel for the respondent Nos.1 to 3 with regard to defence witnesses are residing at Amalapuram, which ground has not raised in the counter-affidavit filed by the 1^st respondent before this Court, due to that it cannot be considered.

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15. After considering the facts and circumstances of the case, by following the ratio laid down by the Hon’ble Apex Court in Nahar Singh Yadav case referred supra, as per Point (iii), this Court is of an opinion that there are grounds to consider the request of the petitioner to transfer SC No.27 of 2021 from Assistant Sessions Judge’s Court, Amalapuram of East Godavari Judicial District to Principal Assistant Sessions Judge’s Court, Visakhapatnam.

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16. In the result, this Transfer Criminal Petition is allowed. SC No.27 of 2021 on the file of Assistant Sessions Judge’s Court, Amalapuram of East Godavari Judicial District is hereby withdrawn and transferred to Principal Assistant Sessions Judge’s Court, Visakhapatnam. The learned Assistant Sessions Judge, Amalapuram shall transmit the case records in SC No.27 of 2021 to Principal Assistant Sessions Judge’s Court, Visakhapatnam after duly indexed as expeditiously as possible within a period of Two (02) weeks from the date of receipt of

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Orders of this Court in the present petition. The learned Principal Assistant Sessions Judge, Visakhapatnam shall dispose of SC No.27 of 2021 as expeditiously as possible within a period of One (01) year from the date of receipt of

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Orders of this Court in the present petition. The learned Principal Assistant Sessions Judge, Visakhapatnam shall consider the absent applications if any to be filed by 2^nd respondent and 3^rd respondent, as per the procedure laid down under law, after considering their age, and he shall not insist their presence for each and every adjournment, unless it is required for identification by the witnesses during the trial. The petitioner and respondent Nos.1 to 3 shall appear before Principal Assistant Sessions Judge’s Court, Visakhapatnam on 09.02.2024 at 10.30 a.m. No order as to costs. Consequently, miscellaneous petitions if any, shall stand closed. Interim Stay if any, granted shall stand vacated.

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___________________________ JUSTICE BANDARU SYAMSUNDER

Date: 08.01.2024

Bsv

THE HON’LE SRI JUSTICE BANDARU SYAMSUNDER

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Tr.Crl.P.No.85 of 2023

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Date : 08.01.2024

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Bsv

Smt Surisettimanika v. Dr Surisetti Vidya Sagar

Case brief

What is this about?

What did the court decide?

Smt Surisettimanika v. Dr Surisetti Vidya Sagar

Case brief

What is this about?

What did the court decide?

What the court decided

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