Karnataka High Court
Smt Kartika Kilam vs State Of Karnataka on 22 February, 2017
Author: John Michael Cunha
Bench: John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF FEBRUARY, 2017
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION. No. 692/2017
BETWEEN:
Smt. Kartika Kilam,
W/o G.K.J Reddy,
Age: 46 Years,
R/o. C/o. Gp Capt GKJ Reddy,
OMQ: P-21,
HQ Training command, IAF,
JC Nagar Post,
Bangalore - 560 006. ... Petitioner
(By Sri. Nishit Kumar Shetty, Advocate)
AND:
State of Karnataka,
Represented by
Karwar Rural Police Station,
Represented by Public Prosecutor,
High Court Building,
Bangalore - 560 001. ...Respondent
(By Sri. Sandesh J. Chouta, SPP-II)
-----
This Criminal Petition is filed under Section 407 of
Cr.P.C. praying transfer of C.C. NO. 349/2016 of Karwar
Rural P.S., pending before the Court of CJM at Karwar for
the offences P/U/S 353, 332, 504 of IPC to C.M.M. Court
at Bangalore.
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This Criminal Petition is coming on for orders this
day, the court made the following:
ORDER
This petition is filed under Sec.407 of Cr.P.C. seeking to transfer CC No.349/2016 pending before the court of Prl. Civil Judge (Sr.Dn.) & CJM., Karwar for the offences punishable under Secs.353, 323 and 504 of IPC.
2. In the petition it is stated that on 29.12.2015 petitioner had been to Karwar to visit her relatives and at that time some differences arose between her and her husband and hence she left the house and was waiting for her husband in Karwar bus stand and at that time police started video-graphing her and when she objected the police took her to the police station and once again police started video-graphing and registered a false case against her for the offences punishable under Sec.353, 323 & 504 of IPC..
3. The grievance of the petitioner is that initially she was not provided with any legal assistance and only on 3 the next date of her production before the court she was provided with legal assistance. Further it is stated that even though she complained of ill-treatment, learned Magistrate called for the medical report. The investigating officer has not bothered to produce the said records before the court. The petitioner has stated that she is the permanent resident of Bangalore and an ex-Wing Commander, she is residing in Bangalore and on account of adverse atmosphere in Karwar, she is apprehensive of getting justice at the hands of the court within Karwar jurisdiction and hence she has sought for transfer of the case to Bangalore.
4. I have heard the learned counsel for the petitioner as well as the learned HCGP and perused the grounds urged in the petition.
5. I find that the grounds pleaded by the petitioner do not warrant a transfer. Sec.407 of Cr.P.C. which provides for the transfer of the case, reads as under: 4
"407. Power of High Court to transfer cases and appeals.- (1) Whenever it is made to appear to the High Court -
(a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or
(b) that some question of law of unusual difficulty is likely to arise; or
(c) 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 is expedient for the ends of justice, It may order -
(i) that any offence be inquired into or tried by any Court not qualified under sections 177 to 185 (both inclusive, but in other respects competent to inquire into or try such offence;
(ii) that any particular case, or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction;
(iii) that any particular case be committed for trial to a Court of Session; or
(iv) that any particular case or appeal be transferred to and tried before itself.
(2) The High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative:
Provided that no application shall lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him.5
(3) Every application for an order under sub-
section (1) shall be made by motion, which shall, except when the applicant is the Advocate-General of the State, be supported by affidavit or affirmation.
(4) When such application is made by an accused person, the High Court may direct him to execute a bond, with or without sureties, for the payment of any compensation which the High Court may award under sub-section(7). (5) Every accused person making such application shall give to the Public Prosecutor notice in writing of the application, together with a copy of the grounds on which it is made, and no order shall be made on the merits of the application unless at least-twenty-four hours have elapsed between the giving of such notice and the hearing of the application.
(6) Whether the application is for the transfer of a case of appeal from any subordinate Court, the High Court may, if it is satisfied that it is necessary so to do in the interests of justice, order that, pending the disposal of the application, the proceedings in the subordinate Court shall be stayed, on such terms as the High Court may think fit to impose:
Provided that such stay shall not affect the subordinate Court's power of remand under Sec.309.
(7) Where an application for an order under sub-
section(1) is dismissed, the High Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider proper in the circumstances of the case.
(8) When the High Court orders under sub-
section(1) that a case be transferred from any 6 Court for trial before itself, it shall observe in such trial the same procedure which that Court would have observed if the case had not been so transferred.
(9) Nothing in this section shall be deemed to affect any order of Government under section 197." In the instant case, except stating that the trial court has not secured the medical report from the investigating officer and that the complainant and the witnesses cited by the prosecution are police officials, no other grounds are urged in the petition which brings the case within any one of the parameters of Sec.407 of Cr.P.C.. No doubt, being a woman, it would be difficult for the petitioner to travel from Bangalore to Karwar, but that itself cannot be a reason for transfer of the case. Law provides for payment of allowances and traveling expenses to the witnesses. That apart, petitioner being the accused cannot be allowed to choose the forum for her prosecution. Merely because the case is originated within the jurisdiction of Karwar Court, without there being justifiable reasons warranting transfer, the petition cannot be allowed. 7
6. I do not find any merits in the petition. Accordingly it is dismissed. However, trial court shall extend all necessary assistance to the petitioner as permissible under law during the trial of the case.
Sd/-
JUDGE R*