Writ jurisdiction application seeking transfer of a criminal complaint from Pune to Mumbai based on a Supreme Court order transferring a related case from Uttar Pradesh to Mumbai. The court rejected the transfer application summarily.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 1076 OF 2007
Shri Ram Janam S/o Banwari ..Applicant
Vs.
The State of Maharashtra & anr. ..Respondents
Mr. S.P. Kadam for applicant.
Mr. D.P. Adsule, APP for State.
Mr. M.S. Mohite for respondent no.2.
CORAM: B.H. MARLAPALLE, J.
Date : October 29, 2007.
P.C.:
1. Heard Mr. Kadam the learned counsel for the
applicant who is the accused in RCC No. 961 of 2006
in his capacity as the Power of Attorney Holder of
Shri Bhishma Pitamah Maniram. This application filed
under Section 407 read with Section 482 of Cr.P.C.
prays for transfer of RCC No. 961 of 2006 filed by
the State on the complaint of added respondent no.2
Smt. Ciceillia Anthony Paul, a resident of Pune and
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the said case is pending before the learned JMFC,
Court No.5, Shivajinagar at Pune and it is prayed that
the said case be transferred to the court of the
learned Metropolitan Magistrate at Mumbai and it has
been stated that the transfer application is based on
the order passed by the Apex Court in Transfer
Petition (Criminal) No. 301 of 2006. It is further
submitted that the said transfer petition was decided
by the Hon’ble Supreme Court on 6/8/2007 and the
following order came to be passed:-
". We have heard Mr. Mukul Rohatgi,
learned senior counsel for the Petitioner and
Mr. Rakesh Dwivedi, learned senior counsel
for the Respondent.
. Having regard to the facts and
circumstances of the case, we are of the
opinion that the criminal case under Section
138 of the Negotiable Instruments Act pending
before Chief Judicial Magistrate, Mau (U.P.),
may be transferred to Mumbai. It is,
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accordingly, directed that Case No.
2003/2005, titled "Ramjanam v. Ceceilia
Anthony Paul & Anr", pending in the Court of
Chief Judicial Magistrate, Mau (U.P.) is
transferred to the Court of Chief Metropolitan
Magistrate, Mumbai who may either try it
himself or assign it to any other competent
Court.
. The transfer petition is, accordingly,
allowed."
2. Mr. Kadam, learned counsel for the applicant,
therefore, submitted that the pending criminal
complaint i.e. C.C. No. 961 of 2006 is also in
connection with the dishonoured cheque which is the
subject matter in Case No. 2003 of 2005 filed before
the learned Chief Judicial Magistrate at Mau (U.P.)
and which has been now transferred to the court of the
learned Chief Metropolitan Magistrate at Mumbai and,
therefore, the pending case in the court of learned
JMFC, Court No.5 at Pune ought to be transferred and
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clubbed with the transferred case from Mau so as to be
heard by the very same court of the learned Chief
Metropolitan Magistrate or Additional Metropolitan
Magistrate or the Metropolitan Magistrate and the
Chief Metropolitan Magistrate may assign it to.
3. Mr. Mohite the learned counsel for the
respondent no.2 has opposed this application. As per
him RCC No. 961 of 2006 arises from a complaint/FIR
registered on 8/4/2005 regarding the incident that had
taken place on 11/3/2005 and on investigations, the
police have filed the charge-sheet on 3/4/2006. There
are in all 15 witnesses and all based at Pune,
including the present respondent no.2 herself. He
also submitted that the respondent no.2 is presently
about 58 years of age and her business is looked after
by her husband as a Power of Attorney, whereas her two
sons are not acting in the business. Mr. Mohite also
pointed out that applicant as a Power of Attorney
holder of Bhishma Pitamah Maniram has filed Special
Civil Suit No. 8 of 2006 as well as Criminal Case No.
32 of 2006. The applicant as the Power of Attorney
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Holder of Bhishma Pithamah Maniram had approached the
Apex Court in Transfer Petition (Civil) No. 102 of
2007 and Transfer Petition (Cri) No.58 of 2007 for
transfer of both these proceedings i.e. Spl.Civil
Suit No.8/06 and Criminal Case No. 32/06
respectively. Both these applications came to be
dismissed by the Apex Court by a common order dated
19/3/2007 which reads as under:-
"On the grounds stated in the transfer
petitions, we are not inclined to allow these
petitions. However, in the event the
petitioner finds any difficulty for adequate
reasons, in prosecuting the case at Pune, he
may bring the same to the notice of the
Superintendent of Police concerned, who may do
the needful. The transfer petitions are
dismissed."
. It was also pointed out by Mr. Mohite that by
Transfer Petition (Civil) No.102 of 2007 as well as
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Transfer Petition (Cri) No. 58 of 2007 the present
applicant was seeking the transfer of the Special
Civil Suit as well as the Criminal Complaint either to
the court at Mau or to any court at Banglore and both
these alternative prayers were declined by the Apex
Court.
4. Both the parties have referred to the various
documents like General Power of Attorney, Agreement
for Sale, Indemnity Bond, Declaration-cum-Indemnity
Bond and so on and so forth and while Mr. Kadam urged
before this court that when the Apex Court has
specifically transferred the case filed under Section
138 of the N.I. Act from the court at Mau to the
Court of Metropolitan Magistrate at Mumbai, RCC No.
961 of 2006 arising from the very same cheque ought to
be transferred from Pune to the court at Mumbai of
competent jurisdiction, whereas, as per Mr. Mohite
such a prayer cannot be entertained by this court
because though the present respondent no.2 herself had
approached the Apex Court in Transfer Petition (Cri)
No.301 of 2006 with a prayer to transfer the complaint
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pending before the Chief Judicial Magistrate at Mau
(U.P.) to the court at Pune so as to be clubbed with
RCC No. 961 of 2006, their Lordships of the Supreme
Court have not conceded to such a requested and the
case has been transferred to the court of the learned
Metropolitan Magistrate at Mumbai, which itself
indicates the inclination of the Apex Court against
clubbing of these two cases and to be decided by the
very same court. Mr. Kadam at this stage has also
relied upon the decision in the case of B.R. Gupta
and anr. Vs. Rohit Jain [2007 ALL MR (Cri) 2088
(S.C.)] wherein the case under Section 138 of the N.I.
Act filed in New Delhi and complaint under Section
420/120-B of IPC at Bhatinda, Punjab were clubbed
together and were directed to be heard and decided by
the learned Metropolitan Magistrate at New Delhi.
5. Mr. Mohite has placed before me a copy of the
Transfer Petition (Cri) 301 of 2006 and the prayer in
the same reads as under:-
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"....this Hon’ble Court may be pleased to
direct the transfer of Case No. 2003 of 2005
titled as "Ramjanam Vs. Smt. Ceceillia
Anthony Paul & Anr." pending in the Court of
Chief Judicial Magistrate, Mau District Mau,
U.P. to the Court of Learned Judicial
Magistrate First Class, Court No.5, Shivaji
Nagar Court, Pune (Maharashtra)..."
. Inspite of such a specific prayer made by the
present respondent no.2 before the Supreme Court,
their Lordships transferred the case from Mau to Chief
Metropolitan Magistrate at Mumbai who may either try
the same himself or assign it to any other competent
court, which means the court of Additional Chief
Metropolitan Magistrate or Metropolitan Magistrate at
Mumbai. Mr. Mohite, therefore, is right in his
submissions that the Apex Court was not inclined to
club the case pending before the Chief Judicial
Magistrate at Mau with RCC No. 961 of 2006 or
Criminal Case No. 32 of 2006 pending before the
learned JMFC at Pune. These implied indications will
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have to be, therefore, accepted and keeping in mind
the difficulties expressed by the respondent no.2 that
the charge-sheet had already been filed, there are in
all 15 witnesses and all of them are based at Pune,
will have to be taken into consideration and such a
transfer is likely to cause hardship to the respondent
no.2 who is otherwise a permanent resident of Pune for
the last more than 25 years or so, though she is
required to defend the case transferred from the court
at Mau to the court of Metropolitan Magistrate at
Mumbai and filed by or at the behest of the present
applicant.
6. Having regards to the order passed by the Apex
Court in Transfer Petition (Cri) No.301 of 2006 on
6/8/2007, I am not inclined to entertain this transfer
application and, therefore, the same is hereby
rejected summarily. Trial of RCC No. 961 of 2006 is
hereby expedited.
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(B.H. Marlapalle,J.)
2 issues framed by the court
Whether a criminal complaint pending before a Judicial Magistrate in Pune should be transferred to Mumbai following the Supreme Court's order transferring a connected case from Uttar Pradesh to Mumbai
Whether the High Court can entertain a transfer application that effectively seeks to override or contradict the specific directions and implications of the Supreme Court's order in a related matter.
Colour shows how this judgement treated each authority
Transfer Petition (Criminal) No. 301 of 2006Referred¶15
B.R. Gupta and anr. Vs. Rohit JainReferred¶35
B.R. Gupta and anr. Vs. Rohit Jain [2007 ALL MR (Cri) 2088 (S.C.)]
1 provisions across 1 enactments
Shri Ram Janam S/o Banwari
The State of Maharashtra
Smt. Ciceillia Anthony Paul
B.H. Marlapalle
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court