Partly allowed

Uma Thakur @ Bhawna v. State of Chhattisgarh

Chhattisgarh HC4 Aug 2023TPCR/11/2023

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh disposed of a transfer petition under Section 407 Cr.P.C. regarding a Section 498-A case. Rejecting the claim of tampering, the Court found the transfer was based on convenience rather than a real apprehension of hindered justice. The trial is to remain at Dhamtari, but the petitioner is directed to receive security expenses and Rs. 2000 travelling money for appearin

What did the court decide?

Transfer petition dismissed; petitioner directed to provide Rs. 2000 travelling expenses if she visits Dhamtari for recording evidence.

Uma Thakur @ Bhawna Vs State of Chhattisgarh — Writ and Judicial Review | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Order r eserved on 28/07/2023

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Order passed on 04/08/2023

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TPCR No. 11 of 2023

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Uma Thakur @ Bhawna W/o Vijay Singh Thakur, Aged About 35 Years At Shiv Chowk, Dhamtari, Police Station – City Kotwali, District- Dhamtari, C.G. Currently At Durga Chowk, Mathpara, Raipur, Police StationTikrapara, Raipur, Chhattisgarh.

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---- Petitioner

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Versus

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1. State of Chhattisgarh, Through: SHO P.S. City Kotwali Dhamtari, District Dhamtari, Chhattisgarh.

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2. SHO, P.S. Tikrapra, At P.S. Tikrapara, Raipur, Chhattisgarh.

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3. Vijay Singh Thakur @ Golu, S/o Ramgopal Singh Thakur, Aged About 42 Years, At Ramsagarpara Ward No. 31, Dhamtari, Chhattisgarh.

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4. Hemlata Thakur W/o Dhanraj Singh Thakur, Aged About 37 Years, At Ward No. 5, Village Godmarra, Bemetara, Police Sation- Dhamda, District Bemetara, Chhattisgarh.

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5. Ramgopal Singh Thakur, S/o Late Gulab Singh Thakur, Aged About 78 Years, At Ramsagarpara Ward No. 31, Dhamtari, C.G.

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6. Saroj Thakur, W/o Ramgopal Thakur, Aged About 68 Years, At Ramsagarpara Ward No. 31, Dhamtari, C.G.

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---- Respondents

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For Petitioner : Mr. Vinay Nagdev, Advocate. For State/respondents No. 1 & 2 : Mr. Devesh Verma, G.A. For Respondents No. 3 to 6 : Mr. Shivam Agrawal, Adv. on behalf of Mr. Hemant Kumar Agrawal, Adv.

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Hon'ble Shri Sanjay Kumar Jaiswal, Judge

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CAV Order

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The petitioner herein has filed an application under Section 407 of the Cr.P.C. for transferring Criminal Case No. 2045/2022 pending before the Chief Judicial Magistrate, Dhamtari (C.G.) to the Court of Competent

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Jurisdiction at Raipur (C.G.) for the offence punishable under Section 498-A and 294 read with Section 34 of the IPC.

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The transfer petition is to the effect that the marriage of petitioner Uma Thakur @ Bhawna with respondent No.3 – Vijay Singh Thakur @ Golu was solemnized on 21.11.2021 at Hanuman Temple, Raipur with Hindu Rituals. Respondents No. 3, 4, 5 and 6 are the petitioner’s husband, sister-in-law, father-in-law and mother-in-law respectively. The parental house of the petitioner is situated at Tikrapara, Raipur and her matrimonial house is situated at Dhamtari. The FIR was lodged by the petitioner at Police Station - Tikrapara, Raipur and the police registered Zero F.I.R. and then transferred the same to the Police Station- City Kotwali, Dhamtari, from where after investigation of the case the charge sheet was filed before the Chief Judicial Magistrate, Dhamtari (C.G.).

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Learned counsel for the petitioner submits that the petitioner and other witnesses dwell in Raipur and as such since the local police station had jurisdiction under the criminal law, the investigation and charge sheet should have been conducted and filed at Raipur. The criminal case tried at Dhamtari is liable to transfer to the Court of competent jurisdiction at Raipur. He also submits that in light of the law laid down by this Court in the case of Smt. Preeti Sharma Vs. State of Chhattisgarh , passed in WPCR No. 430 of 2020 on 23.11.2020, wherein transfer of a similar FIR was held to be unjustified, the transfer of FIR lodged in the present case at the behest of the petitioner is also unjustified and hence the transfer of the consequent criminal proceedings back to Raipur is warranted in law. He next submits that the private respondents are influential persons in their locality and they are continuously pressurizing the petitioner to bend down and compromise and withdraw her complaint therefore, there would be apprehension of tampering and influencing the witnesses including the complainant, therefore also, the sought transfer of criminal proceedings is

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just and proper. He also submits that the transfer of the said case from Dhamtari to Raipur would not cause any injury or damage to the rights of the private respondents whereas it is a reason of inconvenience for the complainant/petitioner and many of the witnesses. He lastly submits that the concerned police station and the I.O. completely stood in violation of the law in transferring the FIR to Dhamtari while in fact causing hardship to the complainant. In the light of the facts and circumstances of the case, nontransfer and continuation of criminal proceedings before the Court at Dhamtari would be in complete abuse of the process of law. He placed reliance on the decision of this Court in the matter of Smt. Preeti Sharma Vs. State of Chhattisgarh and Others , passed in WPCR No. 430 of 2020 on 23.11.2020.

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Learned counsel for respondents No. 3 to 6 submits that the respondents are innocent and falsely implicated in the present complaint case. Respondent No. 5 is aged about 80 years and he is suffering from many ailments. Similarly, respondent No. 6 is about 70 years old lady, who is suffering from many ailments, her eye vision is also very weak and she is unable to do properly her routine work. Respondent No. 4 is a sister-in-law of the petitioner and she is residing in her matrimonial house at village Godmarra, Bemetara (C.G.). He next submits that it is crystal clear from the witness list of the charge sheet, that all witnesses except the complainant and her brother are residents of the jurisdiction of the Dhamtari District Court. He also submits that an agreement has been executed between the complainant and respondent No. 3 on 13.07.2022 and as per the agreement the petitioner received Rs. 20 lacks and her Streedhan from respondent No. 3. The petitioner wants more money from respondents No. 3 to 6, therefore she has filed this transfer petition before this Court. He placed reliance on the decision of the Hon’ble Supreme Court in the matter of Rupali Devi Vs. State of Uttar Pradesh , reported in AIR 2019 SC 1790

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and on the decision of this Court in the matter of Purvi Jain Bohra vs. Ritesh Kumar Bohra & Others , passed in Transfer Petition (Cr.) No. 12 of 2021 on 15.07.2022 .

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Learned counsel for the State/respondents No. 1 and 2 submits that the police have taken all due care and diligence while investigating the instant matter and are bound to investigate the matter in accordance with law. He also submits that the instant petition is not maintainable as no facts and grounds have been urged by the petitioner warranting any interference by this Court, the instant petition deserves to be dismissed being baseless and devoid of merits.

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I have heard learned counsel for the parties and considered their rival submissions and also went through the record.

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Regarding the transfer of a criminal case, the provision under section 407 of the Cr.P.C. is as follows:-

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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 (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; (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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In the matter of Rupali Devi (Supra) the Hon’ble Supreme Court has held in

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para 16 as under:

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“ 16. …. that the Court at the place where the wife takes shelter after leaving or driven away from the matrimonial home on account of acts of cruelty committed by the husband or his relatives, would, dependent on the factual situation, also have jurisdiction to entertain a complaint alleging commission of offences under Section 498A of the Indian Penal Code.”

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The Supreme Court in the matter of Ashish Chadha v. Asha Kumari and

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another1 has held that transfers ordered merely on the say-so of a party have a demoralising effect on the trial courts and further held that that unless a very strong case based on concrete material is made out, such transfers should not be ordered.

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The Supreme Court in the matter of Gurcharan Dass Chadha v. State of Rajasthan2 held that transfer should not be made merely on the basis of apprehension but there must be a reasonable apprehension.

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Similarly, in the matter of Abdul Nazar Madani v. State of T.N. and

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another3 the Supreme Court has held that the apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary.

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In the matter of Capt. Amarinder Singh v. Prakash Singh Badal and

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others4 while dealing with an application for transfer under Section 406 CrPC, their Lordship of the Supreme Court have opined that for transfer of a criminal case, there must be a reasonable apprehension on the part of the party to a case that justice will not be done and it cannot be directed only on apprehension.

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The Supreme Court in the matter of Usmangani Adambhai Vahora v. State of Gujarat and another5 has held that seeking transfer at the drop of a hat is inconceivable. An order of transfer is not to be passed as a matter of routine or merely because an interested party has expressed some

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1 (2012) 1 SCC 680

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2 AIR 1966 SC 1418

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3 (2000) 6 SCC 204

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4 (2009) 6 SCC 260

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5 (2016) 3 SCC 370

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apprehension about proper conduct of the trial. The power has to be exercised cautiously and in exceptional situations, where it becomes necessary to do so to provide credibility to the trial. There has to be a real apprehension that there would be miscarriage of justice. (See Nahar Singh

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Yadav v. Union of India6 ).

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In the matter of Preeti Sharma (Supra) this Court has observed that the FIR for offence punishable under Section 498-A of the IPC can be filed in the Police Station where the complainant resides with her parents after leaving her matrimonial home.

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In the light of the above judgments in the subject matter and legal provisions, in the instant case, it is clear that the petitioner is a resident of District - Raipur, who lodged the report at Police Station- Tikrapara, Raipur but according to the written report, the crime was committed in District Dhamtari, therefore, the complaint, after registered on zero has been transferred to City Kotwali, Dhamtari, no legal error is reflected in it. The police of City Kotwali, Dhamtari have registered the original crime number and submitted the final report to the Court. Such a situation does not reflect that there is any apprehension in getting justice to the petitioner from the Court of Dhamtari. The instant transfer petition has been basically filed on the basis of convenience.

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In the list of witnesses attached in the final report of the police, a total of 7 witnesses have been named, out of which, the petitioner and her brother are residents of Raipur, 2 other witnesses are residents of Dhamtari and the rest are policemen or officers. All the accused are residents of Dhamtari. There are 2 old age persons among the accused/respondents and the accused have to appear in the Court. Thus, the offence is also said to have been committed in District – Dhamtari and the accused are also residents of that place. The petitioner has to go to Dhamtari Court to give statement

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6 (2011) 1 SCC 307

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only once. In the above circumstances, the transfer of the case does not seem appropriate.

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Keeping in view the convenience and apprehension of the petitioner, his purpose would be served by providing him security and expenses in going to Dhamtari for her statement.

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In the matter of Ranjit Singh and another v. Popat Ramabhaji Sonawane

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and others7 their Lordships of the Supreme Court declined to grant transfer on solitary ground that complainant’s safety would be in danger and further directed the jurisdictional police to provide safety and security to the petitioner therein for the period required for recording of petitioner’s evidence.

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Following the principle of law laid down by the Supreme Court in Ranjit Singh (Supra), the Superintended of Police, Raipur is directed that if the application is made on behalf of the petitioner for police protection for visiting Dhamtari to record evidence, all arrangement should be made for her safety and security and arrangement is to be made for the period required for recording of the petitioner’s evidence. Lastly, learned counsel for the respondents No. 3 to 6 would submit that respondent No. 3 is ready and willing to bear all travelling expenses. In that view of the matter, it is directed that if the petitioner visits Dhamtari for recording her evidence, Rs. 2000/- would be paid to her as travelling expenses on that day before the Court.

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The transfer petition is disposed of with aforesaid observation/direction.

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Sd/-

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(Sanjay Kumar Jaiswal) Judge

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H.L. Sahu

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7 AIR 1983 SC 292

Uma Thakur @ Bhawna v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Uma Thakur @ Bhawna v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

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