CRM-M No. 43164 of 2014 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M No. 43164 of 2014
DATE OF DECISION :- August 14, 2018
Munish Kakkar and another …Petitioners
Versus
State of Punjab and another …Respondents
CORAM: HON’BLE MR. JUSTICE H.S. MADAAN
Present:- Mr. Vishal Gupta, Advocate for the petitioners.
Mr. Dhruv Dayal, Sr. DAG, Punjab.
Ms. Nidhi Kakkar-respondent no. 2 in person.
***
This petition under Section 407 Cr.P.C. read with Section 482
Cr.P.C. for transfer of criminal case titled as ‘State of Punjab versus Munish
Kakkar and others’ registered vide F.I.R. No. 215 dated 17.8.2005 under
Sections 406, 498-A IPC registered with Police Station Nawanshahar pending
in the Court of Additional Chief Judicial Magistrate, Shaheed Bhagat Singh
Nagar to some other Court of competent jurisdiction outside District SBS
Nagar has been filed by petitioner Munish Kakkar and Swaran Kakkar, both of
them being accused in the said case.
By way of filing the instant petition they have also challenged
order dated 28.10.2014 passed by Sessions Judge, SBS Nagar. Interalia in the
petition, the petitioners have contended that respondent no. 2 Nidhi Kakkar has
falsely involved petitioner Munish Kakkar her husband and Swaran Kakkar her
mother-in-law, Gulshan Raj Kakkar her father-in-law in this case; that parent-
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in-law of complainant are aged more than 70 years.
After filing of challan in the Court, the case is pending since the
year 2005. In addition to this case, other cases in respect of the same parties are
pending at Jalandhar. Divorce petition between petitioner and respondent no. 2
is pending in Hon’ble Supreme Court of India; that during the trial before
Additional Chief Judicial Magistrate SBS Nagar, the complainant-respondent
no. 2 had made a statement running into about 80 pages as cross examination-
in-chief whereas statement given by her under Section 161 Cr.P.C. runs into
1½ page only and original complaint was of two pages only. Although the
objections were taken by the petitioners with regard to such statement and the
Court being inconsistent with the statement given by the complainant to the
police under Section 161 Cr.P.C. but those objections were not considered by
the trial Court, that about 96 opportunities have been granted to the prosecution
to conclude the evidence but same is still going on. Despite an application
having been moved for closing the prosecution evidence on behalf of parents
of petitioner no. 1 that request has not been considered and the requisite order
has not been passed thereon. It is contended that respondent no. 2 is a
practicing Advocate at Nawanshahar since the year 2007 and is member of Bar
Association SBS Nagar. She is contesting all the cases on her own; that learned
trial Court is pressurizing petitioner to conclude cross-examination of the
complainant/respondent no. 2 at the earliest and is disallowing the questions
being put to her. The trial is getting delayed at the instance of
prosecution/complainant and not due to any fault of petitioner. In the petition
several interim orders have been reproduced. The petitioners have alleged bias
towards respondent no. 2 who is a practicing Advocate at Nawanshahar. The
petitioners had statedly moved an application before learned Sessions Judge,
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SBS Nagar for transferring the case from the Court of ACJM SBS Nagar to
some other Court but the application was dismissed in default on 26.9.2014
since petitioners could not appear there for the reason that hearing in the matter
for grant of divorce was pending before Hon’ble Supreme Court; that Mrs.
Sapna Jaggi, who had been appearing for petitioners had withdrawn her
vakalatnama on 4.9.2014 on objection being raised by the complainant on
technical grounds. Thereafter the petitioners had engaged Sh. Hardeep Singh,
an Advocate of Banga, since no local counsel was willing to be engaged
against respondent no. 2 as it was her personal matter. Sh. Darshan Singh
Dayal, Advocate practicing at Jalandhar who was representing the petitioners
had earlier gone abroad and the fact was within the knowledge of the trial
Judge that petitioners were handicapped in engaging another counsel; that
during the trial when several questions were disallowed Sh. Hardip Singh,
Advocate representing petitioners felt uncomfortable and left the matter
midway. Petitioner no. 1 had to cross examine the complainant himself though
he had no qualification and experience in the matter. The petitioners prayed for
transfer of the case to some other Court outside SBS Nagar.
The request is being opposed vehemently on behalf of the
complainant. The official respondents also crave for dismissal of petition.
I have heard learned counsel for the petitioners and learned State
counsel besides going the record and I do not see any reason to accept the
petition.
It may be mentioned here that the allegations in the petition are
quite general and vague. Respondent no. 2-complainant may be a member of
the local Bar or practicing Advocate at SBS Nagar but that does not mean that
she is so influential or powerful so as to interfere with the judicial functioning
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of a Court. It is neither alleged nor any evidence on file to show that the
Presiding Officer is acquainted with the complainant having cordial relations
with her resulting in having a favourable tilt towards her. Merely because
complainant is stated to be a member of local Bar Association does not mean
that she can be made to interfere with the process of law and to get favourable
verdict.
Learned Sessions Judge has rightly dismissed the application for
transferring of the case moved by the petitioners since no favourable or
justifiable reason could be furnished for the same. Though it is said that no
lawyer accepted the brief on behalf of the petitioners but the petitioners are
contradicted by their own contentions when they give the name of three
lawyers who had been representing them earlier. There is nothing on record to
show that the petitioners brought the fact of their being unable to engage a
counsel from the local Bar due to influence of respondent no.2-complainant to
learned District and Sessions Judge SBS Nagar or Member Secretary of the
District Legal Services Committee. It is not the case of the petitioners that they
had reported the matter to the police lodging any complaint against the
complainant.
Section 303 Cr.P.C. deals with right of a person against whom
proceedings are instituted to be defended. It provides that any person accused
of an offence before a criminal Court or against whom proceedings are
instituted under this Code may of right to be defended by a pleader of his
choice. Section 304 Cr.P.C. deals with providing legal aid to the accused at
State expense in certain cases. It provides that where in a trial before the Court
of Sessions the accused is not represented by a pleader and where it appears to
the Court that accused has not sufficient means to engage a pleader the Court
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shall assign a pleader for his defence at the expenses of the State.
Therefore, if the petitioners have got any grouse they can of course
contact learned District and Sessions Judge or Secretary, District Legal
Services committee or request the Court that they be provided with a lawyer.
The complainant has referred to various authorities in support of
her contention that for the reasons given in the petition the case cannot be
transferred. First such authority was “D.A.V. College, Hoshiarpur Society
(Regd.) and another versus D.M. Sharma and others” 2005 (1) RCR (Civil) 71
by a coordinates Bench of this Court wherein it was observed that when
transfer of a suit was sought on the ground that respondent was a practicing
Advocate in the Court at Hoshiarpur for last many years it was observed that
merely because a litigant is a practicing Advocate would not constitute a valid
ground for transfer of the case . In “Satish Jaggi versus State of Chhattisgarh
and others 2007(2) Crimes (SC) 289” the Apex Court had summed up the law
regarding transfer of case from one Court to another under Section 406 and
407 Cr.P.C. as follows :-
“(1) A case is transferred if there is a reasonable apprehension
on the part of a party to a case that justice will not be
done.
(2) A petitioner is not required to demonstrate that justice
will inevitably fail. He is entitled to a transfer if he shows
circumstances from which it can be inferred that he
entertains an apprehension.
(3) It is one of the principles of the administration of justice
that justice should be done but it should be seen to be
done. AIR 1966 Supreme Court 1418 relied.
(4) Grounds for the transfer have to be tested on this
touchstone bearing in mind the rule that normally the
complainant has the right to choose any Court having5 of 6
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CRM-M No. 43164 of 2014 6jurisdiction and the accused cannot dictate where the
case against him should be tried. AIR 1979 Supreme
Court 468 relied.
(5) 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 of the
Code. 2000(2) RCR (Crl.) 770 (SC) relied.
(6) 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.
(7) Convenience of parties including witnesses to be
produced at the trial is a relevant consideration for
deciding the transfer petition. 2000(2) RCR (Crl.) 770
(SC) relied.
(8) Where public confidence in the fairness of the trial is
likely to be seriously undermined under the
circumstances of the case, transfer petition could be
allowed. AIR 1958 Supreme Court 309 relied.”
Here the allegations levelled against the Presiding Officer are
general and sweeping type which do not provide any reason for transfer of case
from his Court to some other Court of competent jurisdiction in the Session
Division or outside. Accordingly, the petition being without merit stands
dismissed.
(H.S. MADAAN)
JUDGE
August 14, 2018
p.singh
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
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