Tagged: 498a transfer
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02/12/2011 at 3:30 PM #555AnonymousGuest
I find some good judgment on 498a transfer.
Below are 2 judgment:-
1) Supreme court of India
(Transfer Petition (Criminal) Nos. 94-95 of 2010)
AUGUST 27, 2010
[Aftab Alam and R.M. Lodha, JJ.]
2010(10) SCR 229
The following order of the Court was delivered
O R D E R
1. We have heard counsel for the petitioner.
2. No one appears for the respondent despite service of notice.
3. The petitioner is the estranged wife of the respondent. While still living
with him at Hyderabad, she had filed a written report before the Station
House Officer, P.S. Alwal, Secunderabad, that led to the institution of FIR
No. 470/2009 dated September 09, 2009 under Section 498-A of the Penal
Code citing her husband Dhananjaya Mishra (the sole respondent) and five
others as accused. The Police, after investigation, submitted charge sheet
and the proceedings against the accused are now pending before the VIth
Metropolitan Magistrate, Cyberabad in CC No. 804/2009.
4. In the meanwhile, the petitioner left her husband at Hyderabad and came
to live with her parents at Indore. She has filed this petition for transferring
the criminal case pending before the VIth Metropolitan Magistrate,
Cyberabad to a court of competent jurisdiction at Indore, Madhya Pradesh.
5. The first thing that needs to be noticed is that in the Transfer Petitions
only the husband Dhananjaya Mishra is impleaded as respondent. The other
accused in the criminal case are not made parties to these Transfer
Petitions. The Transfer Petitions are, therefore, liable to be dismissed on
that score alone.
6. Otherwise also, we are not inclined to transfer a criminal case from one
State to another solely on the ground that it would be more convenient for
the complainant (wife) to prosecute the matter there. 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
7. 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 constraints, but the consequences of nonappearance
of the accused before the Indore Court would be quite drastic.
Having regard to the consequences of non-appearance of the accused in a
criminal trial, we are loath to entertain the petitioner’s prayer for transfer. In a
criminal proceeding, the right of the accused to a fair trial and a proper
opportunity to defend himself cannot be ignored for the convenience of the
complainant simply because she happens to be the estranged wife.
8. For all these reasons, we are not inclined to accept the prayer for transfer
in these cases.
9. The Transfer Petitions are dismissed.
2) Punjab and Haryana high court
Crl. Misc. No. 21849 of 2010 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
Crl. Misc. No. 21849 of 2010 (O&M)
Date of decision:- March 31, 2011
Renu … Petitioner
State of Haryana & Ors. … Respondents
CORAM:- HON’BLE MR. JUSTICE GURDEV SINGH
Present:- Mr. Pankaj Kumar Dua, Advocate, for the petitioner.
Mr. Shekhar Mudgal, A.A.G, Haryana.
Mr. Gaurav Sethi, Advocate, for respondents No. 2 to 8.
Gurdev Singh, J (oral)
Crl. Misc. No. 17542 of 2010
The reply filed by respondents No. 2 to 8 is ordered to be taken on
the record. They are permitted to place on record summoning order Ex.R.1.
Crl. Misc. No. M – 21849 of 2010
This petition under Section 407 read with Section 482 of the Code
of Criminal Procedure has been filed by the petitioner, Renu, for the transfer
of the case arising out of FIR No. 178 dated 20.5.2008, registered under
Section 406, 498-A, 506/34 IPC in Police Station Amabala Cantt titled as
“State Vs. Vishal @ Sonu and others” from the Court of Sh. Parveen
Kumar, Judicial Magistrate, Ist Class, Amabla, to some court of competent
Crl. Misc. No. 21849 of 2010 (O&M) -2-
jurisdiction at Jalandhar.
According to the petitioner the application filed by her under
Section 125 Cr.P.C for maintenance is pending in the Court at Jalandhar and
the petition filed by Vishal Kumar respondent No.2 under Section 25 of the
Guardians and Wards Act, 1890, seeking the custody of minor child has
been ordered to be transferred from the Court at Ambala to the Court of
Civil Judge (Sr. Division), Jalandhar. The only ground pleaded in the
petition for transfer of the case is that the petitioner is deprived of proper
financial as well as other means to effectively persuade the said criminal
proceedings at Ambala as she is unable to undertake the journey to Ambala
while leaving her child behind at Jalandhar and she is only person to take
care of the child.
The petition under Section 25 of the Guardians and Wards Act,
1890 was transferred by this Court on the ground that only the Court at
Jalandhar had the jurisdiction to try that petition. The application under
Section 125 Cr.P.C was filed by the petitioner at Jalandhar itself. Therefore,
the pendency of the other two cases in the Courts at Jalandhar, cannot be a
ground for the transfer of the present criminal case. The stress has been laid
by learned counsel for the petitioner that the petitioner is unable to come
from Jalandhar to Ambala to attend the criminal case on account of her bad
financial position. In civil matters the convenience of the wife is to be seen
for the transfer of the suit/petition, but in criminal proceedings that is no
ground for the transfer. As held by the Hon’ble Supreme Court in Monica
Vs. Satish Sharma and another 2009(4) RCR (Criminal) 854, for the
purposes of transfer, the Court is to see not only the convenience of one
Crl. Misc. No. 21849 of 2010 (O&M) -3-
party but is to see the convenience of both the parties and witnesses, as well
as the large interest of the society. The accused/respondents are resident of
Ambala and it was also not disputed that most of the witnesses to be
examined are also stationed at that place. Merely on account of the
convenience of the petitioner, the case cannot be transferred from Ambala to
the Court of competent jurisdiction at Jalandhar, as that will result in
inconvenience to the accused and the witnesses. It is pertinent to note that
the case is to be pursued by the State and the petitioner is to appear in that
case only once as a witness and there is provision in the High Court Rules
and Orders for the payment of travelling expenses and subsistence
allowance to the witnesses appearing in the criminal cases and those
expenses are to be born by the State.
No ground is made out for transfer of the case and the petition is
March 31, 2011 (Gurdev Singh)
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