498a transfer

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      Anonymous
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      Hi,

      I find some good judgment on 498a transfer.

      Below are 2 judgment:-

      1) Supreme court of India

      JYOTI MISHRA

      v.

      DHANANJAYA MISHRA

      (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

      proceedings.

      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

      CHANDIGARH

      -.-

      Crl. Misc. No. 21849 of 2010 (O&M)

      Date of decision:- March 31, 2011

      Renu … Petitioner

      Versus

      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

      Heard.

      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

      Heard.

      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

      hereby dismissed.

      March 31, 2011 (Gurdev Singh)

      tripti Judge

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