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Mahesh Kumar vs State (Nct Of Delhi) & Ors on 19 December, 2017

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 21.08.2017
Judgment Pronounced on: 19.12.2017

+ TR.P. (CRL.) 87/2016
MAHESH KUMAR ….. Petitioner
Through: Mr. Sameer Chandra, Advocate

versus

STATE (NCT OF DELHI) ORS ….. Respondent
Through: Ms.Aashaa Tiwari, APP for State
with SI Sandeep Kumar, PS Palam Village,
Delhi. Mr. Avnish Rana, Advocate for R-2
to R-4.

CORAM:
HON’BLE MR. JUSTICE VINOD GOEL

VINOD GOEL, J.

1. The petitioner, who is the father of the victim, has filed this
petition under section 407 read with section 482 of the Code of
Criminal Procedure, 1973 (in short „the code‟) seeking transfer
of the case vide FIR No.308/2012 dated 03.11.2012 under
section 498A/406/34 of the IPC registered at PS Palam Village
pending trial before the Court of Ms. Purva Sareen, Mahila
Courts, Dwarka to the Court of Learned ASJ (North-West),
Rohini for simultaneous disposal with the case registered vide

TR.P. (CRL )87/2016 Page 1 of 8
FIR No.414/14 under section 498-A/304B/302/34 IPC
registered at PS Adarsh Nagar.

2. Status report was filed on behalf of the State. It was submitted
that the marriage of the deceased, who is the daughter of the
petitioner was solemnized with respondent no.2 on 09.02.2010.
There were allegations of demand of dowry and cruelty against
respondent no.2, 3 4 and the FIR No. 308/12 was registered
under sections 498A/406/34 IPC. On 01.08.2013, charge sheet
was filed in the Court of Ms. Purva Sareen, MM, Dwarka Court,
Delhi and the case is still pending.

3. Subsequently, on 21.06.2014, the victim was allegedly
murdered and the said FIR 414/14 dated 22.06.2014 under
sections 498A/304B/302/34 IPC was registered against
respondent no.2, 3 4. This case is pending before the Court of
V.K Bansal, ASJ (North-West), Rohini District Courts, Delhi.

4. Mr Sameer Chandra, learned counsel for the petitioner had
argued that since both the above mentioned cases are of a
similar nature and a part of the evidence in these cases would be
common, it would be expedient in the interest of justice that
both the cases are tried and decided by the court of learned ASJ
to avoid multiplicity of proceedings.

5. Per contra, Ms. Aashaa Tiwari, learned APP had argued that a
part of the evidence in both the cases has already been recorded
and it would not be in the interest of justice to club both the
matters and record the evidence again specially when offences

TR.P. (CRL )87/2016 Page 2 of 8
under FIR No.308/12 are being tried by a Metropolitan
Magistrate while the offences covered by the FIR No.414/2014
are being tried by an Additional Sessions Judge.

6. I have heard the learned counsel for the parties.

7. The power of the High Court to transfer cases and appeals is
given under Section 407 of the code. It would be profitable to
reproduce Section 407 herein:

“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.

TR.P. (CRL )87/2016 Page 3 of 8

(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 order under sub-section
(1) shall be made by motion, which shall, except
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 application 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 interests 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.

TR.P. (CRL )87/2016 Page 4 of 8
(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.”

8. The Hon’ble Supreme Court in Abdul Nazar Madani v. State
of T.N., (2000) 6 SCC 204 while laying down the scope of the
High Court‟s power under Section 407 to transfer criminal cases
held as under:

“7. The purpose of the criminal trial is to dispense
fair and impartial justice uninfluenced by
extraneous considerations. When it is shown that
public confidence in the fairness of a trial would
be seriously undermined, any party can seek the
transfer of a case within the State under Section
407 and anywhere in the country under Section
406 CrPC. The apprehension of not getting a fair
and impartial inquiry or trial is required to be
reasonable and not imaginary, based upon
conjectures and surmises. If it appears that the
dispensation of criminal justice is not possible
impartially and objectively and without any bias,

TR.P. (CRL )87/2016 Page 5 of 8
before any court or even at any place, the
appropriate court may transfer the case to another
court where it feels that holding of fair and proper
trial is conducive. No universal or hard and fast
rules can be prescribed for deciding a transfer
petition which has always to be decided on the
basis of the facts of each case. Convenience of
the parties including the witnesses to be
produced at the trial is also a relevant
consideration for deciding the transfer petition.
The convenience of the parties does not
necessarily mean the convenience of the
petitioners alone who approached the court on
misconceived notions of apprehension.
Convenience for the purposes of transfer means
the convenience of the prosecution, other
accused, the witnesses and the larger interest of
the society.

9. A perusal of this Section clearly shows that the High Court has
the power to transfer a case from one court subordinate to its
authority to another which is either equal or superior in terms of
jurisdiction. The petitioner has asked for the transfer in this case
on the ground of convenience as he claims that a part of the
evidence in both the cases would be common and it would help
in expediting the disposal of the both the cases.

10. The first FIR No.308/2012 was registered under sections
498A/406/34 of the IPC when the victim alleged harassment
and demand for dowry against her husband and his family while
the second FIR No.414/2014 was registered under section

TR.P. (CRL )87/2016 Page 6 of 8
498A/304B/302/34 of the IPC after the victim was allegedly
murdered within 7 years of her marriage with the accused.

11. It cannot be said that both the FIRs relate to the same incident
as the first FIR was registered in the year 2012 due to
allegations of harassment for demand of dowry while the
second FIR was registered in the year 2014 after the victim and
her child were allegedly murdered by her husband. The
evidence in both the cases might overlap in connection with the
alleged demand for dowry and cruelty inflicted upon the victim
in relation to such demand, but since the FIRs have not arisen
out of the same incident, they cannot be termed as being cross-
cases arising out of the same incident and hence cannot be tried
by the same Court.

12. Moreover, the offence covered by FIR No. 308/2012 is triable
by a Magistrate while the offence covered under FIR
No.414/2014 is triable by the Sessions Court. Moreover, part
evidence in both the cases has already been recorded and it
would not be lawful to transfer the case pending before Ld. MM
to the Court of Ld. ASJ.

13. Following the principle laid down in Abdul Nazar Madani’s
case (supra), keeping in mind the convenience of both the
parties and the prosecution, it would be in the interest of justice
and for the convenience of all the interested parties if both the
cases are tried in same Court complex.

TR.P. (CRL )87/2016 Page 7 of 8

14. Hence, the case arising out of the FIR No.308/2012 dated
03.11.2012 under section 498A/406/34 of the IPC pending
before the court of Ms.Purva Sareen, Mahila Courts, Dwarka is
ordered to be transferred to the Court of Ld. CMM, North-West
District, Rohini Courts, Delhi in accordance with law.

(VINOD GOEL)
JUDGE
DECEMBER 19, 2017
//

TR.P. (CRL )87/2016 Page 8 of 8

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