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 having

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jurisdiction 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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