R/SCR.A/2606/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 2606 of 2015
SUNITABEN W/O JIGNESHKUMAR MANUPRASAD SHAHU (JAISWAR) D/O
JOKHURAM BADRIPRASAD GUPTA….Applicant(s)
Versus
STATE OF GUJARAT 6….Respondent(s)
Appearance:
MR MIG MANSURI, ADVOCATE for the Applicant(s) No. 1
MS. MOXA THAKKAR, ADDL. PUBLIC PROSECUTOR for the
RESPONDENT(s) No. 1
NIMISHA J PAREKH, ADVOCATE for the Respondent(s) No. 2-7
(MR AY KOGJE), ADVOCATE for the Respondent(s) No. 2-7
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 30/10/2017
ORAL ORDER
1. Rule returnable forthwith. Ms. Thakkar, the learned APP,
waives service of notice of rule for and on behalf of the
respondent No.1-State. Ms. Nimisha J. Parekh, the learned
counsel, submits that long time back, the respondents Nos.2 to
7 have taken away the papers and she has no further
instructions in the matter.
2. By this writ application under Article 226 of the
Constitution of India, the writ applicant has prayed for the
following reliefs;
“(A) An appropriate writ, order or direction may be
issued;
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(I) To transfer the Criminal Case No.2265/2014
pending in the Court of Ld. JMFC, Mahemdabad to the
Court No.7 of Ld. Metropolitan Magistrate, Ahmedabad
considering the peculiar facts and circumstances of the
present case to meet with the ends of justice.
(B) Pending the admission, hearing and final disposal of
this petition, the interim/ad interim relief/s in terms of
para 7A (i) may be granted by way of staying further
proceedings of the said Criminal Case No.2265/2014
pending in the court of Ld. JMFC, Mahmedavad.
(C ) Any other and further relief or reliefs to which this
Hon’ble Court deems fit in the interest justice may kindly
be granted.”
3. In fact, this petition should have been labelled as one
under section 407 of the Cr. P.C. I am saying so because the
prayer is to transfer the criminal case pending in the court of
the learned JMFC, Mahemdavad to the Court No.7 of the
Metropolitan Magistrate at Ahmedabad. However, without
going into the technicality, I am inclined to look into the
matter.
4. In this petition, the petitioner has made the following
averments;
4.1 The marriage of the petitioner with respondent no. 2
was solemnized on 15.4.2013 at Ahmedabad as per their caste
Hindu rites and religion. The petitioner went to her in laws’
place at Mahemdavad with the gold and silver ornaments,
costly clothes, house hold appliances etc. and Rs. 2.5 lacs cash
given at the time of her marriage from her parental side and
was then residing with the respondent no. 2 as his wife at her
in law’s place where all other respondents nos. 3 to 7 were
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also residing in the joint family in the same house at
Mahemdavad. The respondent no. 3 is the father, the
respondent no. 4 is the mother, the respondents nos. 5 7 are
elder brothers and the respondent no. 6 is the sister in law
[Bhabhi] of the respondent no. 2 and that is how they are in
laws of the petitioner.
4.2 From the very beginning at her in laws’ place, all the
respondents no. 2 to 7 were harassing the petitioner for less
dowry and taunting her about it. They increased their demand
for more dowry as the respondent no.2 is an Advocate by
profession. All the said respondent no. 3 to 7 were instigating
the respondent no. 2 who in turn caused mental and physical
cruelty and harassment to the petitioner in this respect. The
petitioner was working in Anganwadi before her marriage and
therefore the respondent no. 2 was doubting her character.
The respo. No. 2 started demanding the passbook and cheque
book of the petitioner. The mobile phone of the petitioner was
also under check by the said respondent no.2; upon being
asked by the petitioner in this respect, the respondent no. 2
was beating her and also threatening to kill her and further to
divorce her.
4.3 The petitioner was suffering all the said mental and
physical harassments and cruelty calmly patiently as a
cultured woman with a hope of good behavior from all the said
respondents. The parents and the leading members of their
caste also tried to resolve the issues raised by the said
respondents; But all her such hopes and expectation from life
went in vain when on 21.8.2014 in the morning hours, on the
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point of washing clothes, all the said respondents started
quarreling with the petitioner and beaten her up and dragged
her with her hairs out of the house, abused like anything and
threatened to kill her if she lived in her in laws’ house at
Mahemdavad and thereby caused mental and physical cruelty
to her. Therefore, she went to Mahemdavad Police Station in
that condition and filed her FIR on 21.8.2014 in this respect.
Annexed hereto and marked as ‘Annexure- A’ is the copy of
the said FIR, Charge sheet counter and charge. This case is
being Criminal Case No. 2265/2014 and is pending for
evidence in the Court of ld. JMFC, Mahemdavad.
4.4 The respondent no. 2- the husband of the petitioner by
implementing his earlier threats at the instigation of all other
respondent no. 3 to 7, filed a divorce petition being H.M.P. No.
164 of 2014 in the court of 1d. Principal Senior Civil Judge,
Nadiad on 25.8.2014 against the petitioner on the false and
flimsy grounds. This petition is also pending for evidence in the
said court. Annexed hereto and marked ‘Annexure-B’ is the
copy of the said divorce petition.
4.5 As the petitioner, in this way, was deserted by the said
respondents and is being mentally and physically harassed by
the said respondent no.2 to 7 for demand of more more
dowry, she filed an application before the Protection Officer,
Ahmedabad on 1.10.2014 for incidents of domestic violence
under The Protection of Women from Domestic Violence Act,
2005 [for short ‘D.V. Act] who in turn upon verification, applied
to the 1d. Metropolitan Magistrate Court no. 7, Ahmedabad city
for various incidents of domestic violence upon the petitioner
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by the said respondents on 20.1.2015 prayed for various
relief orders u/s 18, 19, 20, 22 23 of the D.V. Act. This case is
at the stage of service [bajavani] in the said court. Annexed
hereto and marked ‘Annexure-C’ is its copy.
4.6 The petitioner also filed an application u/s 125 of the
Code of Criminal Procedure, 1973 [for short ‘the code’] for her
maintenance being Cri. Misc. App]. No. 2486 of 2014 in the
Court of Ld. Judge, Family Court, Ahmedabad on 10.10.2014.
This case is pending for evidence in the court of Ld. 5 th Joint
Family Court Judge, Ahmedabad. Annexed hereto and marked
‘Annexure D’ is the copy of the said application by the
petitioner against the respondent no.2.
4.7 The petitioner states and submits that the respondent
no. 2 is a practicing advocate at Mahemdavad and Nadiad. The
petitioner being a helpless and deserted lady has to attend the
court at Mahemdavad and Nadiad along with the cases at
Ahemedabd in criminal court and the family court on four
different adjourned dates in a month which caused undue
physical and economical hardship to the petitioner. The
petitioner hardly could meet with the said expenses by way of
serving in aanganwadi. Further, as the respondent no. 2 is
practicing advocate in the courts at Mahemdavad and Nadiad;
so Whenever the petitioner attend the court at Nadiad and
Mahemdavad, the respondent no. 2 comes with some
documents of compromise etc. and pressurizing the petitioner
to sign it as per the ‘dictates of the respondent no.2 and
thereby the petitioner is under constant threat and pressure by
the respondent No.2 whenever she attends the courts at
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Nadiadvand Mahemdavad. The petitioner is living a helpless
life at her parental home at Ahmedabad. The petitioner is
facing financial crisis and could not afford to attend the court
at Nadiad and Mahemdabad on the different adjourned dates
every time. Moreover, she is put in awkward situation when
she attends the court at Mahemdavad as it is her in laws’ town.
Moreover, the said respondent no.2 is rich and influential
person in the courts at Mahemdavad and Nadiad and
therefore, the petitioner is for sure that she may not get any
justice thereat.
5. None of the averments made in this petition have been
refuted by the private respondents. Taking into consideration
the fact that the other proceedings are pending before the
Metropolitan Magistrate, Court No.7 at Ahmedabad, it would be
expedient in the interest of justice to transfer the Criminal
Case No.2265 of 2014 also to the Court of the learned
Metropolitan Magistrate, Court No.7 at Ahmedabad.
6. In the result, this application succeeds and is hereby
allowed. The Criminal Case No.2265 of 2014 pending in the
court of the learned JMFC, Mahemdavad is ordered to be
transferred to the court of the learned Metropolitan Magistrate,
Court No.7 at Ahmedabad. Rule is made absolute to the
aforesaid extent.
Direct service is permitted.
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(J.B.PARDIWALA, J.)
Vahid
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