High Court dismissed a transfer petition filed to shift a criminal case from Banswara to Jhunjhunu. The Court found no evidence of hostile environment insufficient ground for transfer despite claims of witness inconvenience. Appeal rejected as meritless.
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 FOR RAJASTHAN JAIPUR BENCH, JAIPUR
Smt. Sunita & Ors. V/s. State of Rajasthan & anr.
S.B. Criminal Transfer Petition No.5/2011
S.B. Criminal Transfer Petition under Section 407 of the Code of Criminal Procedure, 1973
Date of Order :: February 02, 2011
HON'BLE MR.JUSTICE R.S.CHAUHAN
Mr. Vijay Poonia for the petitioners. Mr. Javed Chaudhary PP for the State.
This transfer application has been filed by the petitioners for seeking transfer of criminal case No.1882/2009, Jainarayan Meena V/s. Ashok & Ors. pending before the Court of Additional Judicial Magistrate Banswara, District Banswara to the Court of Judicial Magistrate (First Class), Jhunjhunu.
It is the case of the petitioners that the complainant, Jainarayan Meena has lodged a criminal complaint against the petitioners for offences under Sections 498, 459, 452, 325, 147, 149 and 379 IPC. According to the complainant, on 19.08.2007, the petitioners trespassed into his house and allegedly assaulted the complainant and his family members. He further alleged that the petitioners have taken away cash
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and jewellery with them. He further alleged that his wife, Prasanna Devi, was taken away by the petitioners, who happened to be the relatives of his wife, Prasanna Devi. Vide order dated 24.01.2008, the learned Chief Judicial Magistrate took cognizance against the accused petitioners, excluding petitioner No.1. The complainantrespondent filed a revision petition before the Sessions Court, Banswara. Vide order dated 24.09.2009, the learned Judge set aside the order and directing that the cognizance be taken against Sunita, petitioner No.1, as well. Consequently, vide order dated 09.07.2010, the Additional Judicial Magistrate, First Class took cognizance against Sunita as well. The said case is pending at Banswara. According to the petitioners, the said criminal case has been lodged by the complainant in order to save his skin against the case filed by his wife, Prasanna Devi, for offences under Section 498A, 406 and 323 which is pending before the Chief Judicial Magistrate, Jhunjhunu.
The learned counsel for the petitioners has pleaded that Section 407 Cr.P.C., empowers the High Court to transfer a case from one Court to other, if such a transfer would be convenient for the parties and for the witnesses. In order to buttress his contention, the learned counsel has relied upon the case of Sumita Singh V/s.
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Kumar Sanjay & Anr. [AIR 2002 SC 396]. Secondly, in case the petitioners were to attend Court at Banswara, there is likelihood of hostile atmosphere being created against them. According to the learned counsel, the complainant who has assaulted his wife, Prasanna Devi, could easily assault the petitioners as well. Therefore, according to him, it would be inconvenient for the petitioners to attend the Courts at Banswara.
Heard the learned counsel for the petitioners.
Section 407 Cr.P.C. is as under :-
“ 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 be 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
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other such Criminal Court of equal or superior jurisdiction;
(iii)That any particular case be committed for trial of 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 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 subsection (1) shall be made by motion, which shall, except when the applicant is the AdvocateGeneral 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 Curt 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 a copy of the grounds on which it is made; and no order shall be made on the merits of the applications 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 of 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,
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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 application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the 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 subsection (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.”
Although, it is true that Section 407(1)(c) empowers this Court to transfer a case where order of transfer 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 to do so. However, transfer of a case is not for mere asking. If, case could be transferred for mere asking, it would make the provisions of Sections 177 to 185 Cr.P.C. redundant.
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Recently, relying on the case of Kulwinder Kaur V/s. Kandi Friends Education Trust [(2008) (3) SCC 659] in the case of DAV Boys Senior Secondary School & others V/s. DAV College Managing Committee [(2010) 8 SCC 401] , the Hon'ble Supreme Court has observed as under :-
“23. Reading Sections 24 and 25 of the Code together and keeping in view various judicial pronouncements, certain broad propositions as to what may constitute a ground for transfer have been laid down by courts. They are balance of convenience or inconvenience to the plaintiff or the defendant or witnesses; convenience or inconvenience of a particular place of trial having regard to the nature of evidence on the points involved in the suit; issues raised by the parties; reasonable apprehension in the mind of the litigant that he might not get justice in the court in which the suit is pending; important questions of law involved or a considerable section of public interested in the litigation; 'interest of justice' demanding for transfer of suit, appeal or other proceeding, etc. Above are some of the instances which are germane in considering the question of transfer of
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a suit, appeal or other proceeding. They are, however, illustrative in nature and by no means be treated as exhaustive. If on the above or other relevant considerations, the court feels that the plaintiff or the defendant is not likely to have a 'fair trial' in the court from which he seeks to transfer a case, it is not only the power, but the duty of the court to make such order.”
Before inconvenience can be pleaded, a case of
inconvenience has to be made out. Merely because a distance have to be covered, it cannot be a valid reason for transferring the case from one Court to another. If this were taken to be a valid reason, it would create a judicial chaos as large number of parties would then insist that their case should be transferred to the place of their residence. Moreover, since the criminal case is proceeding at Banswara, this Court has to consider if it would be inconvenient for the witnesses to travel from Banswara to Jhunjhunu to depose their evidence before the Court at Jhunjhunu. Therefore, inconvenience of the witnesses has also to be taken in to account for transferring a case.
The learned counsel has not been able to submit an iota of evidence to show that the petitioners are likely to face hostile environment. Merely becaues, the
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complainant used to assault his wife, it would not lead to the inference that he would equally assault the petitioners. Moreover, in case the petitioners have a bona fide apprehension that the complainant may assault them, they have sufficient legal remedies available to them to bound the complainant to maintain peace and tranquility. Therefore, this case is based on a mere hypothetical apprehension of the petitioners.
Hence, this petition is devoid of any merit; it is, hereby, dismissed.
(R.S.CHAUHAN)J.
A.Asopa/-
3 issues framed by the court
Whether the transfer application invoking Section 407 CrPC was maintainable.
Whether the grounds of hostile atmosphere and inconvenience substantiated the petition for transfer.
Whether the petition for transfer of criminal proceedings was devoid of merit.
Sunita & Ors.
State of Rajasthan
R.S. Chauhan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
