498A, Dv Act Case Transfer Dismissed

Madhya Pradesh High Court

Smt. Taramani Parakh
vs
The State Of Madhya Pradesh

on 25 January, 2017
MCRC 6051/2015

Shri M.K. Jain, counsel for the applicant.
Shri R.D. Agarwal, Panel Lawyer for the respondent No.1/State.
None for the respondent No.2.

Shri Pawan Vijaywargiya, counsel for the respondents No.3 and 4.

This petition under Section 407 of Cr.P.C. has been filed for transfer of Criminal Case No.163/2012 pending in the Court of JMFC, Gwalior to the Court of JMFC, Ganj Basoda, District Vidisha.

The case of the applicant/complainant is that a written report was made by her on 19.5.2011 at police station Ganj Basoda, District Vidisha against the respondents No.2 to 4 alleging that they were harassing and treating the complainant/applicant with cruelty for bringing 25-30 tolas of gold and Rs. 2,00,000/- from her father. As the complaint did not disclose any cause of action at Ganj Basoda and after considering the complaint, the concerned police was of the view that the entire offence of cruelty has been committed within the territorial jurisdiction of police station Kotwali, District Gwalior, therefore, the complaint was sent by police station Ganj Basoda to police station Kotwali, District Gwalior. A FIR in Crime No.158/2011 under Section 498-A r/w Section 34 of IPC was registered at police station Hujrat Kotwali, District Gwalior against the respondents No.2 to 4.

After completing the investigation a charge sheet was filed before the court of JMFC, Gwalior against the respondents No.2 to 4 for offence punishable under Section 498-A, 34 of IPC. A petition under Section 482 of Cr.P.C. was filed and the High Court by order dated 20.2.2013 allowed the said petition and the proceedings in Criminal Case No.163/2012 pending in the Court of JMFC, Gwalior were quashed.

Being aggrieved by the order of the High Court, the applicant filed a SLP before the Supreme Court which was allowed by judgment dated 16.3.2015 and the order of the High Court was set aside and the Criminal Case No.163/2012 has been restored.

It is submitted that because of the order of the Supreme Court, the respondents No.2 to 4 have become annoyed and now they have threatened the applicant/complainant that in case she comes to Gwalior then she will have to face dire consequences. It is further submitted that on 11.5.2015 the respondent No.2 appeared before the Court of JMFC, Ganj Basoda in two cases i.e., one under the Protection of Woman from Domestic Violence Act and another under Section 125 of Cr.P.C. and in the Court premises itself threatened the applicant to withdraw both the cases otherwise in case she comes to Gwalior to give statement then she would be done to death. A complaint to the SHO, Police Station Ganj Basoda was made on 13.5.2015. Thus, it is submitted that due to aforesaid reasons a free, fair and impartial trial before the Court of JMFC, Gwalior in Criminal Case No.163/2012 is not possible, therefore, it was prayed that the Criminal Case No.163/2012 pending in the Court of JMFC, Gwalior be transferred to the Court of JMFC, Ganj Basoda, District Vidisha.

Per contra, the counsel for the respondents submitted that the allegations made in the application are imaginary and no such incident has taken place in Ganj Basoda on 11.5.2015 as alleged by the applicant. It appears that with an intention to create a defence a false and imaginary complaint was made to the SHO, Police Station Ganj Basoda on 13.5.2015. Further, it is submitted that the convenience of the complainant cannot be a ground for transfer of the criminal case to the Court of JMFC, Ganj Basoda, District Vidisha.

It is further submitted by the counsel for the respondents that a petition under Section 13 of Hindu Marriage Act is already pending at Gwalior and the applicant is prosecuting the said petition, therefore, the apprehension as expressed by the applicant is frivolous and is liable to be rejected.

The counsel for the applicant in support of his contention has relied upon the judgment of Supreme Court passed in the case of Seema vs. Rakesh Kumar reported in (2000) 9 SCC 271 and Theja V. Nagarjuna vs. V. Nagarjuna reported in 2000 (9) SCC 453 and submitted that the convenience of the lady should be taken into consideration while transferring the case.

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Per contra, the counsel for the respondents No.3 to 4 relied upon the judgment passed by the Supreme Court in the case of Jyoti Mishra vs. Dhananjaya Mishra reported in (2010) 8 SCC 803 submitted that convenience of the party is irrelevant for the purposes of transfer of a criminal case.

Heard the learned counsel for the parties. Before adverting to the submissions made by the counsel for the parties it would be apposite to consider Section 407 of Cr.P.C. which reads 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 to 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 other such Criminal Court of equal or superior jurisdiction;
(iii) that any particular case be committed for trial 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 Session Judge and rejected by him. (3) Every application for an order under sub section (1) shall be made by motion, which shall, excel when the applicant is the Advocate-General 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 Court 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 or appeal from any Subordinate Court, the High Court may if it is satisfied that it is necessary so to do in the interest 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.

(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.

(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.

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

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Thus, from the plain reading of Section 407 (1) of Cr.P.C., it is clear that criminal case may be transferred when a fair and impartial inquiry or trial cannot be held in any Criminal Court subordinate thereto, or that some question of law of unusual difficulty is likely to arise; or an order under this section is required by any provision of the Code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice.

The case of the applicant is that on 11.5.2015 the respondent No.2 had extended a threat to the complainant that either she should withdraw all the cases otherwise in case she comes to Gwalior for giving her evidence in the present case then she will be killed. If this contention of the applicant is considered in proper perspective then it would be clear that on 11.5.2015 the application filed by the applicant against the respondent No.2 under Section 125 of Cr.P.C. as well as under Section 12 of Protection of Woman from Domestic Violence Act was fixed before the Court. It is mentioned in the complaint that the threat was extended by the respondent No.2 to the applicant in the Court premises itself. However, there is nothing on record to show that immediately thereafter the applicant had ever made any complaint to the concerning Court with regard to the threat extended by the respondent No.2. Furthermore, the incident is alleged to have taken place on 11.5.2015 whereas the written complaint was made to SHO, Police Station Ganj Basoda, District Vidisha on 13.5.2015. Why the applicant did not make the complaint to the police on 11.5.2015 itself and why it was made with the delay of two days has not been explained. Undisputedly the applicant is residing at Ganj Basoda whereas the respondents No.2 to 4 are the residents of Gwalior, therefore, if any threat was extended by the respondent No.2 at Ganj Basoda then it cannot be said that because of any apprehension she could not immediately either make a complaint to the concerning Court or to the police station.

So far as the judgments on which the counsel for the applicant has placed reliance are concerned, suffice it to say that those judgments deal with the matrimonial proceedings. Undisputedly in the matrimonial proceedings the convenience of the wife is to be seen whereas the same principle cannot be applied to the criminal cases.

The Supreme Court in the case of Jyoti Mishra (supra) has held as under:-

“5. It is true that in cases of dissolution of marriage, restitution of conjugal rights or maintenance, this Court shows much indulgence to the wife and ordinarily transfers the case to a place where it would be more convenient for the wife to prosecute the proceedings. But a criminal case is on a somewhat different footing. The accused may not be able to attend the court proceedings at Indore for many reasons, one of which may be financial constrains, but the consequences of non- appearance of the accused before the Indore Court would be quite drastic.”
Thus, the applicant cannot get any assistance from the judgments relied upon by her. Further, it is submitted at bar by the counsel for the respondents No.3 and 4 that they are old persons suffering from various diseases including paralysis. In reply to this submission the counsel for the applicant did not dispute the fact that the respondents No.3 and 4 are old and infirm person and are suffering from various diseases including that of paralysis. However, a submission was made by the counsel for the applicant that the respondents No.3 and 4 may be granted a permanent exemption from appearance before the Trial Court but the respondent No.2 should be directed to appear regularly before the Trial Court. Such an offer made by the counsel for the applicant cannot be accepted. The respondents No.2 to 4 are facing trial in a case instituted upon a police report. The applicant is not required to appear regularly before the Trial Court whereas the respondents No.2 to 4 being the accused are under obligation to appear before the Trial Court regularly. Therefore, the case cannot be transferred on the basis of offer made by the counsel for the applicant with regard to the permanent exemption from the respondents No.3 and 4.

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It is well established principle of law that a criminal case cannot be transferred on the basis of mere imaginary grounds. However, assurance of fair trial uninfluenced by extraneous consideration is first imperative of dispensation of justice. If the criminal trial is not free and fair then it would shake the confidence of the public at large in the criminal judicial system. Not only the accused but also the complainant is entitled for free and fair trial.

It is submitted by the counsel for the applicant that the father of the applicant is also a very old and infirm person and he cannot accompany the applicant to go to Gwalior for giving her evidence. This fact has also not been disputed by the respondents that the father of the applicant is also an old person. It is also clear that in a case instituted upon a police report the witnesses are required to appear before the Trial Court for giving their evidence. The complainant/applicant must also be given full opportunity to give their evidence in a free atmosphere and without any apprehension of any kind. Thus, the interest of the parties can be saved if the evidence of the applicant is recorded on commission.

Section 284 of Cr.P.C. reads as under:-

“284. When attendance of witness may be dispensed with and commission issued :-(1) Whenever, in the course of any inquiry, trial or other proceeding under this Code, it appears to a Court or Magistrate that the examination of a witness is necessary for the ends of justice, and that the attendance of such witness cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable, the Court or Magistrate may dispense with such attendance and may issue a commission for the examination of the witness in accordance with the provisions of this Chapter:
Provided that where the examination of the President or the Vice-President of India or the Governor of a State; or the Administrator of a Union Territory as a witness is necessary for the ends of Justice, a commission shall be issued for the examination of such a witness. (2) The Court may, when issuing a commission for, the examination of a witness for the prosecution direct that such amount as the Court considers reasonable to meet the expenses of the accused, including the pleader’s fees, be paid by the prosecution.
From the plain reading of Section 284 (1) of Cr.P.C. it is clear that where the Magistrate comes to a conclusion that the examination of the witness is necessary for the ends of justice and the attendance of such witness cannot be procured without any inconvenience to him/her then the Court may dispense with the attendance of such witness and may issue a commission for the examination of the witness in accordance with the provisions of this Chapter.

The counsel for the respondents expressed that in case any application is filed by the applicant for her examination or the examination of her father as a witness by issuing the commission then the said application will not be opposed by them.

Under these circumstances, this Court is of the considered view that in case the evidence of the applicant and her witnesses are recorded by appointing a commission under Section 284 of Cr.P.C. then the apprehension of the applicant that she may not be able to dispose before the Court freely and without any apprehension can be checked. Thus, this petition is disposed of with the following observations:-

(i) The applicant has failed to make out a case for transfer of criminal case No.163/2012 which is pending before the Court of JMFC, Gwalior to the Court of JMFC, Ganj Basoda, District Vidisha.
(ii) If any application is made by the applicant before the Trial Court for examination of herself and her witnesses on commission then the Trial Court shall pass necessary orders for the examination of the witnesses on commission.
With aforesaid observations, this petition is finally disposed of.

(G.S. Ahluwalia) Judge (alok)

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