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Aayushiben W/O Hirenkumar Gadher … vs State Of Gujarat on 14 November, 2019

R/SCR.A/10742/2018 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CRIMINAL APPLICATION NO. 10742 of 2018

AAYUSHIBEN W/O HIRENKUMAR GADHER D/O GUNVANTBHAI YADAV
Versus
STATE OF GUJARAT

Appearance:
MR. NISHIT P GANDHI(6946) for the Applicant(s) No. 1
MR BHUNESH C RUPERA(3896) for the Respondent(s) No. 2,3,4,5
MR PRANAV TRIVEDI APP (2) for the Respondent(s) No. 1

CORAM: HONOURABLE MR.JUSTICE S.H.VORA
Date : 14/11/2019
ORAL ORDER

1. Rule. Learned A.P.P. Mr.Pranav Trivedi and learned
advocate Mr.B.C. Rupera waive service of Rule for respondent
No.1 and respondent Nos.2 to 5 respectively.

2. By way of the present petition under SectionArticle 226 of the
Constitution of India read with Sections 407 and Section482 of the
Code of Criminal Procedure, the petitioner – original
complainant has prayed to transfer the proceedings being
Criminal Case Nos.2833 of 2018 and 6763 of 2018 pending
before the learned 5th and 2nd Additional Senior Civil Judge and
A.C.J.M., Bhavnagar to the competent Court at Gandhinagar.

3. According to the petitioner, she has lodged F.I.R. being
C.R.No.II-32 of 2017 dated 16.12.2017 with Women police
station, Bhavnagar against the private respondents herein for
the offence punishable under Sections 498A, Section323, Section504, Section506(2)
and Section114 of the Indian Penal Code and Sections 3 and Section7 of the
Dowry Prohibition Act.

4. Upon completion of the investigation, the chargesheet
came to be filed and numbered as criminal case, as aforesaid.

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R/SCR.A/10742/2018 ORDER

5. According to the petitioner, as hearing of the case is
started, she has to travel from Ahmedabad to Bhavnagar and
distance between two places to and fro is about 350 kms.
Further, the petitioner is required to remain present on every
occasion and most of the witnesses are staying at Ahmedabad.
According to the petitioner, there are other proceedings being
Criminal Misc. Application Nos.207 of 2018 and 329 of 2018
between the petitioner and the private respondents which are
pending before the Court of learned J.M.F.C., Gandhinagar.

6. It is specifically stated by the petitioner that the original
accused No.1 gave threat to her and when he came at
Gandhinagar to attend hearing of the aforesaid case, he
threatened the petitioner to face dire consequences when she
comes to attend the proceedings at Bhavnagar. For the said
incident, the petitioner has also lodged complaint before
Sector-7 police station, Gandhinagar and copy thereof is
annexed at Annexure-D to the petition.

7. In view of the above facts and circumstances of the case,
the petitioner submits that the petition may be allowed.

8. While opposing present petition, the private respondents
have filed affidavit-in-reply and denied all the allegations
alleged against them.

9. The learned advocate for the private respondents, after
relying upon the provisions of Sections 177, Section179 and Section180 of the
Code of Criminal Procedure, would submit that the provision
contained therein specifies the ordinary place of inquiry and
trial and the offence shall ordinarily be inquired and tried by
the Court within whose local jurisdiction, the crime was

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R/SCR.A/10742/2018 ORDER

committed. It is further stated at bar by the learned advocate
for the private respondents that the matter is at the stage of
framing of charge and, therefore, no case is made out to allow
present petition.

10. Heard the learned advocates appearing for the respective
parties.

11. From the submissions made at bar, it appears that most
of the witnesses are staying at Ahmedabad, two proceedings
are already pending before the competent Court at
Gandhinagar and distance between two places to and fro is
about 350 kms. Further, the petitioner being a lady and she
being dependent upon her parents, at this juncture, it would
cause more hardship to her to attend the case at Bhavnagar.
As alleged by the petitioner that she was threatened at
Gandhinagar and if it is so, it is necessary that she should be
provided free and fair atmosphere and no prejudice would be
caused to the private respondents if the case is transferred
from the Court at Bhavnagar to the competent Court at
Gandhinagar.

12. So far as contention raised by the learned advocate for
respondent No.2 on the basis of Section 177 of the Code of
Criminal Procedure is concerned, it needs to be noted that the
High Court under Section 407 of the Code may order that any
offence be inquired into or tried by any Court not empowered
under Sections 177 to Section185 but, in other respects competent to
try the offence. Bearing in mind the scope of Section 407 of
the Code of Criminal Procedure, present petition deserves to
be accepted.

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R/SCR.A/10742/2018 ORDER

13. In view of the above and for the reasons stated
hereinabove, present petition is allowed. The learned 5th and
2nd Additional Senior Civil Judge and A.C.J.M., Bhavnagar are
directed to transfer the proceedings being Criminal Case
Nos.2833 of 2018 and 6763 of 2018 to the Court of learned
J.M.F.C., Gandhinagar forthwith. Rule is made absolute to the
aforesaid extent. Direct service is permitted.

(S.H.VORA, J)
Hitesh

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