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Sau. Pooja W/O Nitin Chincholkar vs Nitin Ajabrao Chincholkar And … on 19 April, 2018

1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR

CRIMINAL WRIT PETITION 589 OF 2015

Sau. Pooja w/o. Nitin Chincholkar,
aged about 27 years,
Occupation : Household,
R/o. C/o. Girdharrao Mahulkar,
Hanuman Nagar, Umri, Akola,
Tahsil and District Akola. …PETITIONER

…V E R S U S…

1 Nitin Ajabrao Chincholkar,
aged about 31 years, Occ. Service,
R/o. “Aai Niwas”, Vinayak Nagar,
Washim, Tahsil District Washim,
presently in service at Gandhi
Chowk Police Station, Latur

2 Sau. Kalpana Bhaskar Hatekar,
aged about adult, Occ. Household,
R/o. Pandurang Darshan Apartmment,
A/1/02, Chij Papada Road,
Besides Telephone Exchange,
Kalyan (E), Mumbai

3 Smt. Sharda Ajabrao Chincholkar,
aged about adult, Occ. Household,
R/o. : “Aai Niwas”, Vinayak Nagar,
Washim, Tahsil District Washim

4 Kishor Ajabrao Chincholkar,
aged about adult, Occ. Service,
R/o. “Aai Niwas”, Vinayak Nagar,
Washim, Tahsil District Washim

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5 Sau. Anita Kishore Chincholkar,
aged about adult. Occ. Household,
R/o. “Aai Niwas”, Vinayak Nagar,
Washim, Tahsil District Washim …RESPONDENTS

——————————————————————————————
Shri A.R. Deshpande, counsel for petitioner.
None for respondents.
—————————————————————————————–

CORAM: ROHIT B. DEO, J.
DATE: th
19
April, 2018.

ORAL JUDGMENT

Heard.

2 Rule. Rule made returnable forthwith.

3 By order dated 20.6.2017, recording that the

respondents are not appearing despite service of notice, this Court

issued fresh notices to the respondents for final disposal. The

fresh notices are duly served. The respondents have chosen not to

appear and contest the petition.

4 The petitioner is seeking transfer of Miscellaneous

Criminal Complaint 1261 of 2011 pending on the file of the 6th

Judicial Magistrate First Class, Akola to 4th Joint Civil Judge,

Senior Division, Akola which Court is seisin of Hindu Marriage

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Petition 349 of 2014. The request for transfer is rejected by the

learned Principal Sessions Judge, Akola by order dated 2.3.2015 in

Miscellaneous Criminal Case 1261 of 2011, which order is also

assailed by the petitioner, as an abundant precaution.

5 Facts lie in narrow compass. The petitioner is the

legally wedded wife of respondent 1. She instituted proceedings

under section 12 of the Protection of Woman from Domestic

Violence Act, 2005 (hereinafter referred to as the “D.V. Act”)

seeking reliefs under section 17, 18, 19, 20 and 22. Respondent 1

has instituted proceedings seeking divorce, which proceedings

bearing registration number HMP 349 of 2014 are pending on the

file of the Family Court.

6 The petitioner avers, which averment has gone

unchallenged, that the basic issue which is involved in both the

litigations is whether the husband / respondent 1 has subjected

the petitioner to cruelty.

7 The petitioner moved an application purportedly

under section 408 of the Criminal Procedure Code, 1973 (“Code”

for short) before the Principal Sessions Judge, Akola seeking

transfer of the proceedings before the Judicial Magistrate First

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Class to the Family Court, which application is rejected by the

learned Principal Sessions Judge, Akola as not maintainable. The

rejection is predicated on the premise that section 408 of the Code

empowers the Sessions Judge to transfer a case from one Criminal

Court to the other and not to transfer a case from a Criminal Court

to a Civil Court.

8 Shri A.R. Deshpande, the learned counsel for the

petitioner invites my attention to a judgment of a learned Single

Judge of this Court (R.D. Dhanuka, J.) in Manoti Subhash

Anand ….vs..Subhash Manoharlal Anand reported in 2015 SCC

Bom 6113 and in particular to the following observations:

“16. A perusal of the Miscellaneous Civil Application filed
by the applicant clearly indicates that the applicant has
not only invoked the provisions under section 24 of the
Code of Civil Procedure, 1908 but has also invoked
general and inherent jurisdiction and jurisdiction under
Article 227 of the Constitution of India. It is not in
dispute between the parties that the reliefs claimed by the
applicant before the learned Metropolitan Magistrate
under the provisions of Domestic Violence Act can be
granted by the Family Court. Section 24 of the Code of
Civil Procedure, 1908 in my view will have to be read
with the Bombay High Court Appellate Side Rules, 1960
and in particular Rule 6 of Chapter I. A conjoint reading
of section 24 of the Code of Civil Procedure, 1908 and
Rule 6 of Chapter I of the Bombay High Court Appellate
Side Rules, 1960 clearly indicates that an application for
transfer of suits, appeals, criminal cases or other
proceedings pending for trial or disposal in any Civil
Court or Criminal Court subordinate to the High Court or
over which the High Court has power of superintendence,

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to another Court subordinate to or under the
superintendence of the High Court, or to the High Court
can be made before the Single Judge. In my view the High
Court has power of superintendence over the court of
learned Metropolitan Magistrate. Under Rule 6 of
Chapter I, the High Court is empowered to transfer any
proceedings even pending before a criminal court which is
subordinate to the High Court or over which the High
Court has power of superintendence to another criminal
court which is subordinate to High Court or over which
the High Court has power of superintendence and such
court shall have jurisdiction to grant such reliefs on such
transfer.

17. In my view there is no inconsistency between the
provisions of section 24 of the Code of Civil Procedure and
Rule 6 of Chapter I of the Bombay High Court Appellate
Side Rules, 1960. Be that as it may, even if there is any
inconsistency between section 24 of the Code of Civil
Procedure, 1908 and Rule 6 of Chapter I of the Bombay
High Court Appellate Side Rules, 1960, in my view the
rules of the Bombay High Court Appellate Side Rules,
1960 would prevail over the provisions of Code of Civil
Procedure, 1908. There is thus no merit in the
submission of the learned counsel for the respondent that
this court on civil side cannot pass any order for transfer
of the proceedings pending before the learned
Metropolitan Magistrate to the Family Court by exercising
powers under section 24 of the Code of Civil Procedure
which are to be read with Rule 6 of Chapter I of the
Bombay High Court Appellate Side Rules, 1960 or that
such order can be passed only in a writ petition.

18. The Madras High Court with the similar facts in hand
in an application filed under section 24 of the Code of
Civil Procedure has transferred the proceedings filed by
the wife under the provisions of Domestic Violence Act
before the Metropolitan Magistrate in that case to the
Family Court in which the proceedings filed by the
husband were pending. Madras High Court took a view
that under section 26 of Domestic Violence Act ample
powers were given to the Family Court to deal with the
proceedings initiated by the wife under the Domestic

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Violence Act. In my view the facts before the Madras
High Court are identical to the facts of this case. I am in
respectful agreement with the view taken by the Madras
High Court in case of Selin Raja alias Maria Selin Raj
(supra).”

The factual matrix in Manoti Subhash Anand .vs. Subhash

Manoharlal Anand was that the wife invoked section 24 of the

Civil Procedure Code, 1908 and the inherent jurisdiction of this

Court to seek transfer of proceedings pending on the file of the

Magistrate’s Court to Family Court, Bandra. The said application

was opposed by the learned counsel appearing for the respondent

on the ground that section 24 of the Civil Procedure Code is not

attracted. It is in the backdrop of these basic facts, that the

learned Single Judge was pleased to record the observations

referred to supra.

9 The learned Principal Sessions Judge, Akola is right in

observing that the application seeking transfer of Miscellaneous

Criminal Complaint 1261 of 2011 pending on the file of the 6th

Judicial Magistrate First Class, Akola to 4th Joint Civil Judge,

Senior Division, Akola is beyond the scope of section 408 of the

Code. But then, this Court’s inherent powers are wide enough to

direct the transfer of the case pending before the 6th Judicial

Magistrate First Class, Akola to 4th Joint Civil Judge, Senior

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Division, Akola since there is no specific provision in the statute

which expressly or implicitly precludes the High Court from

directing such transfer. Having perused the copy of the complaint

pending before the Judicial Magistrate First Class, Akola and the

copy of the Divorce Petition pending before the Family Court,

Akola, this Court is inclined to accept the submission of Shri A.R.

Deshpande that the basic issue involved, and which shall have to

be answered, in both the proceedings is the same. I do not see

any impediment in transferring Miscellaneous Criminal Complaint

1261 of 2011 pending on the file of the 6th Judicial Magistrate

First Class, Akola to 4th Joint Civil Judge, Senior Division, Akola,

as such transfer shall be in the interest of both the contesting

parties and would exclude the possibility of divergent views or

inconsistent findings by the two Courts.

10 In this view of the matter, the petition is allowed.

11 Miscellaneous Criminal Complaint 1261 of 2011 pending on

the file of the 6th Judicial Magistrate First Class, Akola is

transferred to 4th Joint Civil Judge, Senior Division, Akola for

being heard alongwith Hindu Marriage Petition 349 of 2014.

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12 Rule is made absolute in terms of prayer clause A of the

petition.

JUDGE

RS Belkhede, PA

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