Dismissed

Smt. Pratibha Bhawan Wife of Shri Rahul Soni v. the State of Rajasthan

Rajasthan HC7 Nov 2024CRLTP/26/2024

Case brief

AI extract

What is this about?

Two criminal transfer petitions sought shifting of cross-cases arising from matrimonial disputes between Ajmer and Jaipur. The High Court dismissed both, holding the cases were properly instituted before courts of competent jurisdiction at Ajmer, most witnesses resided there, and no material showed unfair trial or apprehension.

What the court decided

AI extract

Smt. Pratibha Bhawan Wife of Shri Rahul Soni Vs… — Matrimonial and Divorce | Rajasthan HC (2024)

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[2024:RJ-JP:46485]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Criminal Miscellaneous Transfer Petition No. 26/2024

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Smt. Pratibha Bhawan Wife Of Shri Rahul Soni, Aged About 33 Years, R/o Moti Viher Ramnagara, Ajmer P.s Ganj Ajmer (Raj)

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Vijeta W/o Prateek Kumar, Aged About 33 Years, R/o Gandhi Chowk Phulera Jaipur P.s. Phulera Jaipur (Raj)

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----Petitioners

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Versus

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The State Of Rajasthan, Through Public Prosecutor Rajasthan High Court Jaipur Bench Jaipur

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Smt. Khusbu Soni W/o Shri Amit Prajapat, R/o Moti Vihara , Ram Nagar, Ajmer P.s. Gnaj Ajmer (Raj)

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----Respondents

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Connected With

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S.B. Criminal Miscellaneous Transfer Petition No. 25/2024

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Smt. Pratibha Bhawan Wife Of Shri Rahul Soni, Aged About 33 Years, R/o Moti Vihar Colony, Ramnagar, Ajmer

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----Petitioner

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Versus

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State Of Rajasthan, Through Public Prosecutor Rajasthan High Court, Jaipur Bench Jaipur

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Rahul Soni Son Of Shri Narendra Kumar, R/o Mati Vihar Colony, Ramnagar, P.s. Ganj, Ajmer (Raj)

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Smt. Khusbu W/o Shri Amit Prajapat, R/o, Gali No. 5 Ram Nagar, P.s. Ganj , Ajmer (Raj)

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----Respondents

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For Petitioner(s) : Mr. Rajendra Prasad Sharma For Respondent(s) : Mr. Onkar Singh Rajpurohit, PP Mr. Harendra Singh with Mr. Hemang Singh

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HON'BLE MR. JUSTICE ASHOK KUMAR JAIN

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Order

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07/11/2024

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[2024:RJ-JP:46485]

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These two petitions were preferred by petitioner(s) to transfer criminal case no. 12656/2023 titled as “State of Rajasthan Vs. Pratibha and Ors.” and criminal regular case no. 12563/2023 titled as “State of Rajasthan Vs. Rahul and Ors.” pending before learned Additional Chief Judicial Magistrate no.2, Ajmer to the Court of Chief Judicial Magistrate, Jaipur Metropolitan-II.

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Both the matters pertain to transfer of criminal case, therefore, we are considering both the transfer petitions by a common order. In criminal regular case no. 12656/2023 both the petitioners are facing trial as an accused whereas in criminal regular case no. 12563/2023 petitioner Pratibha is complainant.

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Learned counsel for petitioner submits that marriage of petitioner Pratibha was solemnized with Rahul Soni and due to matrimonial dispute several cases were registered, by each other. He further submits that husband Rahul has titled a case under Section 13 of Hindu Marriage Act before the Family Court, Ajmer whereas petitioner Pratibha has filed a petition under Section 9 before the Family Court no.1, Jaipur. He also submits that cases under the DV Act and also under Section 125 of Cr.P.C. were filed by petitioner Pratibha in Courts at Jaipur. He further submits that a Co-ordinate Bench has allowed civil transfer petition to transfer case under Section 13 of Hindu Marriage Act from Ajmer to Jaipur, and now four cases are pending in the jurisdiction of Jaipur Courts. He also submits that only two criminal cases one instituted by present petitioner Pratibha and another instituted by her sisterin-law against her are pending in the Courts at Ajmer. He also submits that the petitioners are residing in Jaipur, and convenient

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for them to attend the proceedings at Jaipur. He also referred to the principle of Convenience and submitted that on the ground of convenience both the criminal cases are required to be transferred from Ajmer to Jaipur.

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Aforesaid contentions were opposed by learned counsel for respondent and learned Public Prosecutor. Learned counsel for respondent has submitted that there were seven and ten witnesses respectively in both the criminal cases who belong to Ajmer and it is inconvenient for them to attend the court proceedings at Jaipur. He further submits that these criminal cases were instituted before a Court of competent jurisdiction at Ajmer and when a case was instituted before the Court of competent jurisdiction then, it would not be appropriate to transfer case from Ajmer to Jaipur. He also submitted the principle of transfer on the ground of convenience is not a good reason to transfer a criminal case. He relied upon judgment in case of Mrs. Maneka Sanjay Gandhi and Anr. Vs. Miss. Rani Jethmalani and Ors. (Transfer Petition No. 96 of 1978 (Supreme Court), Harita Sunil Parab Vs. State of NCT of Delhi and Ors. MANU/SC/0305/2018 and Swati Nirkhi and Ors. Vs. State (NCT of Delhi) & Ors. (Transfer Petition (Criminal) No. 262/2018) (Supreme Court). He also referred to the order dated 19.10.2023 in transfer petition no. 26/2021 passed by this Court.

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Heard learned counsel for parties and learned Public Prosecutor. Perused the material placed on record. Also considered the judgments as referred by learned counsel for respondent.

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A perusal of the record clearly reflects that a Co-ordinate Bench has allowed a transfer petition under Section 24 of CPC on 19.03.2024 filed by present petitioner Pratibha Bhawan to transfer petition no. 149/2023 filed under Section 13 of Hindu Marriage Act from Family Court no.2, Ajmer to Family Court no.1, Jaipur. A perusal of order reflects that due to pendency of cases the matter was transferred from Ajmer to Jaipur. Though, this transfer was opposed by the counsel for respondent.

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In a matter arising out of FIR No. 221/2023 from a complaint filed by respondent complainant- Khushboo Soni after investigation police has filed charge-sheet against Pratibha Bhawan and Vijeta under Sections 323 and 341/34 of IPC. The trial court has taken cognizance on date of presentation of chargesheet (22.08.2023). The report was registered at police station having jurisdiction and charge-sheet was filed before the court of competent jurisdiction to try the accused. Section 177 of Cr.P.C. (Section 197 of BNSS) provides for place of inquiry or trial.

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In Swati Nirkhi Vs. State (supra), Hon’ble Supreme Court has considered Section 177 of Cr.P.C. and opined that in a criminal case, place of enquiry and trial to be by court within whose jurisdiction, the crime was allegedly committed. It was further opined that most of the prosecution witnesses are situated in the jurisdiction of local court and if transfer petition is allowed then they would be required to travel from the court of competent jurisdiction to a new place which would cause hindrance in performing their official duties. A Three Judge Bench in the case of Harita Sunil Parab Vs. State (2018) 6 SCC 358] Hon’ble Supreme Court has dismissed the transfer petition after

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considering judgments in the cases of Gurucharan Das Chadha Vs. State of Rajasthan (1966) 5 SCR 678, Mrudul M. Damle and Anr. Vs CBI (2012) 5 SCC 706 and Parminder Kaur Vs. State of U.P. (2007) 15 SCC 307.

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In case of Harita Sunil Parab (supra), after considering the transfer on ground of apprehension for safety, not getting fair and impartial trial and convenience of petitioner, Hon’ble Supreme Court has dismissed the transfer petition.

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In case of Mrs. Menka Sanjay Gandhi (supra) , again three grounds were considered by a three judge bench of Hon’ble Supreme Court, wherein a test was laid down which includes convenience to witnesses availability of lawyer and doubt about fair trial. After considering the material, the transfer application was dismissed.

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Herein this case, the transfer petition no. 26/2024 was filed to transfer the case arising out of FIR no. 221/2023 whereas transfer petition no. 25/2024 was filed to transfer a criminal case arising out of FIR no. 220/2023 filed by present petitioner complainant Pratibha against Rahul and Khushboo.

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Considering the entirety of facts and circumstances of the case, I am of the considered view that both the matters were instituted before the Court having competent jurisdiction and moreover, most of the witnesses except present petitionerPratibha are residing at Ajmer, therefore, it would be inconvenient for them to transfer from Ajmer to Jaipur to assist the criminal justice system. There is no material to consider issue of fair trial or any apprehension.

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