Gujarat High Court
Bhartiben Sajaykumar Makwana vs State Of Gujarat & 6 on 24 August, 2016
Author: Sonia Gokani
Bench: Sonia Gokani
R/SCR.A/2497/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 2497 of 2015
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BHARTIBEN SAJAYKUMAR MAKWANA....Applicant(s)
Versus
STATE OF GUJARAT & 6....Respondent(s)
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Appearance:
MR CR MISHRA, ADVOCATE for the Applicant(s) No. 1
MR. HARDIK K RAVAL, ADVOCATE for the Respondent(s) No. 3 - 4 , 6 - 7
NOTICE SERVED for the Respondent(s) No. 2 , 5
MS NISHA THAKOR, PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 24/08/2016
ORAL ORDER
1. The petitioner is before this Court seeking transfer of Criminal Case No. 373/2010 pending before the learned Addl. Judicial Magistrate, First Class, Visnagar, to the Court of the learned Judicial Magistrate, First Class, Gandhinagar.
2. She has moved this application under Sections 482 and 407 of the Code of Criminal Procedure inter alia, urging that she has lodged a complaint against her in-laws for the offence punishable under Sections 498(A), 323 and 114 of the Indian Penal Code and Sections 3 and 7 of the Dowry Prohibition Act.
3. Respondent Nos. 2 to 7, herein, are alleged to have given mental and physical torture to the petitioner in abetment with each other. She was also assaulted by her mother-in-law in Page 1 of 8 HC-NIC Page 1 of 8 Created On Sat Aug 27 07:24:39 IST 2016 R/SCR.A/2497/2015 ORDER the year 2010. She has a minor son aged about 5 years. She has to attend the competent Court at Visnagar from Gandhinagar, which is nearly 90 to 100 kilometers away, and she has no one else to accompany her. She not only apprehends threat to her life but managing her minor child is also a major issue.
4. On issuance of the notice, learned Advocate, Mr. Hardik Raval, has appeared for Respondent Nos. 3, 4, 6 and 7.
5. Learned APP, Ms. Thakor, appears for the Respondent-State.
6. It is pointed out by the learned Advocate, Mr. Raval, appearing for the Respondent Nos. 3, 4, 6 and 7 that the petitioner, herein has sought transfer of the criminal case on the basis of an incident of the year 2010 and much water has flown, thereafter. She gave her examination-in-chief in the year 2014, and thereafter, she on no occasion appeared before the competent Court for her cross-examination and remained constantly absent and on account of her non-appearance, the competent Court had to issue repeated summons and it also had to issue non- bailable warrant against her, whereupon, she appeared through her advocate with an application Page 2 of 8 HC-NIC Page 2 of 8 Created On Sat Aug 27 07:24:39 IST 2016 R/SCR.A/2497/2015 ORDER for cancellation of the same and that is how the Court could procure her presence with much difficulty.
7. The learned APP has urged that the Court may pass the equitable order. She has assisted this Court by pointing out that much delay has already been caused and the transfer of criminal case will result in further delay. That apart, there is no valid reason for such transfer.
8. Having heard both the sides, at the outset, it is to be noted that the powers of the High Court to transfer a criminal case are provided in Chapter-XXXI under the heading 'Transfer of Criminal Cases'. Whenever, it is made to appear to this Court that a fair and impartial inquiry or trial cannot be held in any criminal Court subordinate to it or some question of law or of unusual difficulty is likely to arise or that an order under this section is required by any provision of this Code, or will tend to the general convenience of the parties or witnesses or it is expedient for the ends of justice to transfer it and to pass such an order in accordance with law after receiving an application as provided in the said provision. Such an order can be passed on seeking report of the lower Court or on an application of the party Page 3 of 8 HC-NIC Page 3 of 8 Created On Sat Aug 27 07:24:39 IST 2016 R/SCR.A/2497/2015 ORDER or by the High Court of its own initiative.
9. Here one of the parties, who is the complainant before the trial Court, has moved this Court on three counts:
(1) She is a resident of Gandhinagar and Visnagar is at a distance of about 90 to 100 kilometers from there;
(2) She has a minor child and leaving his custody with any of the family members is difficult;
(3) She was assaulted in the past by
her mother-in-law and she apprehends
recurrence of such incident, and
therefore, she has approached this
Court.
10. This Court notices from the perusal of the record that the incident of assault on the petitioner is of the year 2010, where the report of the Medial Officer in a letter addressed to the Police Inspector, Visnagar Police Station, indicates that MLC Case No. 190/2010 has been registered and the history is given of assault by mother-in-law. There are no other details referred to in the documents provided by the Page 4 of 8 HC-NIC Page 4 of 8 Created On Sat Aug 27 07:24:39 IST 2016 R/SCR.A/2497/2015 ORDER petitioner. This Court also notices that the 'Rojkam', which has been brought on record, also refers to the constant absence of the complainant-petitioner. It also, further, gets reflected that on 03.05.2014, the Court concerned had issued non-bailable warrant against the complainant and she had moved an application through her Advocate on 26.11.2014 for canceling the same. Further, her examination-in-chief has been recorded partially and the matter continued to be on the evidence of the complainant till the last date of hearing, i.e. 09.05.2016. This Court also notices that no such application has been, at any point of time, moved before the Court concerned apprehending the threat to her life. Otherwise, the Court concerned would have directed the concerned Police Officer to provide necessary protection to the petitioner. Assuming that the petitioner chose not to do it before the Court concerned and has approached this Court, this Court finds no justification in permitting the transfer.
11. The reference is made to the decision of this Court in the case of NAYNABEN W/O. ASHWINBHAI KANTILAL TAILOR D/O. NIRANJANBHAI VS. STATE OF GUJARAT AND ORS., 2012(2)GCD 983(Guj.), where this Court permitted such transfer when the applicant apprehended threats from the Page 5 of 8 HC-NIC Page 5 of 8 Created On Sat Aug 27 07:24:39 IST 2016 R/SCR.A/2497/2015 ORDER Respondent-accused and that she could not go to the concerned police station to give her statement, the Court directed the IO concerned to record her statement at her residence and in such glaring circumstances, the Court had directed the transfer of the matter. The facts of the present case are completely different. The applicability of the aforesaid decision in case of the present applicant does not find favour with this Court.
12. So far as the decision of this Court in RAJSHREEBEN DHARMENDRABHAI PATADIA VS. STATE OF GUJARAT & ORS., 2004 (2) GCD 1257 (Guj.) is concerned, the applicant, therein, was suffering from a long ailment and she was a poor lady not getting any maintenance, whereas, her husband was a Bank Officer, and she was also staying at a distance of about 200 kilometers. Considering those overwhelming facts in the case of the applicant, therein, the Court had deemed it fit to exercise powers under Section 407 of the Code.
13. Powers under Section 407 of the Code, as noted herein above, can be exercised, when it is made to appear to this Court and when it is expedient for the ends of justice. This case, by no stretch of imagination, can be said to be the one, wherein either the general inconvenience would be caused to the parties or it is expedient Page 6 of 8 HC-NIC Page 6 of 8 Created On Sat Aug 27 07:24:39 IST 2016 R/SCR.A/2497/2015 ORDER for the ends of the justice to transfer the proceedings. On the contrary, it can be noticed that the petitioner, herself, has not cooperated with the proceedings of the case so far, though, she is the complainant. The Court is waiting for the complainant from the year 2012 to complete her evidence. But, even in the year 2014, her examination-in-chief and her cross-examination at the hands of the other side remains incomplete. Hence, the request of the petitioner for transfer need not be acceded to.
14. In the result, while disposing of this petition, the petitioner is directed to COOPERATE with the proceedings of the case pending before the Court below and to remain present on the next date of hearing for completion of her examination-in-chief and her cross-examination.
15. As a parting note, it is being noted that in the event of any actual threat or apprehension, the petitioner shall be at liberty to make a request to the Court concerned for providing police protection, which shall be considered by it in accordance with law. None of the observations made while disposing of this petition shall prejudice the actual case of either side. DISPOSED OF, accordingly.
Page 7 of 8 HC-NIC Page 7 of 8 Created On Sat Aug 27 07:24:39 IST 2016 R/SCR.A/2497/2015 ORDER (MS SONIA GOKANI, J.) UMESH Page 8 of 8 HC-NIC Page 8 of 8 Created On Sat Aug 27 07:24:39 IST 2016