Chattisgarh High Court
Smt. Ratna Tiwari vs State Of Chhattisgarh on 22 September, 2022
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Transfer Petition (Cr.) No.23 of 2022
1. Smt. Ratna Tiwari, W/o Shri Bhartendu Tiwari, aged about 50 (wrongly
mentioned as 44 in the final report) years, R/o Ward No.1, Ramnagar,
Kawardha, District Kabirdham (C.G.)
2. Smt. Sandhya Pande, W/o Shri Shushil Pande, aged about 48
(wrongly mentioned as 45 in the final report) years, R/o Ramnagar,
Kawardha, District Kabirdham (C.G.)
3. Smt. Nirmala Tiwari, W/o Shri Satnand Tiwari, aged about 68 (wrongly
mentioned as 65 in the final report) years, R/o Village Dullapur,
Rabeli, District Kabirdham (C.G.)
---- Petitioners
Versus
1. State of Chhattisgarh, Station House Officer, Police Station Mahila
Thana, Raipur, District Raipur (C.G.)
2. Smt. Yogita Dubey, W/o Late Rajesh Dubey, aged about 48 years,
R/o Ward No.10, Shiv Chowk, Kisanpara, Gobra Nawapara, District
Raipur (C.G.)
---- Respondents
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For Petitioners: Mr. Dharmesh Shrivastava, Advocate. For Respondent No.1 / State: -
Mr. Sudeep Verma, Deputy Government Advocate.
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Hon'ble Shri Justice Sanjay K. Agrawal Order On Board 22/09/2022
1. This petition under Section 407 of the CrPC has been filed for transfer of Criminal Case No.3335/2002 (State of Chhattisgarh v. Ratna Tiwari and others) pending in the Court of 5th Additional Sessions Judge, Raipur, to the Court of Additional Sessions Judge, Kawardha, District Kabirdham.
2. Mr. Dharmesh Shrivastava, learned counsel appearing for the petitioners, would submit that since the offence has been committed within the jurisdiction of the Court at Kawardha, therefore, the learned 2 Additional Sessions Judge, Raipur has no jurisdiction to try the offence registered against the petitioners and as such, the criminal case be transferred to the Court of Additional Sessions Judge, Kawardha for hearing and disposal in accordance with law. He would further submit that the present case is covered by the grounds enumerated in Section 407(1) of the CrPC, therefore, the transfer petition be allowed. He would rely upon the decision of the Supreme Court in the matter of Lee Kun Hee, President, Samsung Corporation, South Korea and others v. State of Uttar Pradesh and others 1 to buttress his submission.
3. On the other hand, Mr. Sudeep Verma, learned Deputy Government Advocate appearing for the State / respondent No.1, would submit that the question of jurisdiction cannot be raised in a petition under Section 407 of the CrPC, for that, the petitioners have to challenge the order taking cognizance and the order framing charge.
4. In reply to this submission, Mr. Shrivastava, learned counsel for the petitioners, would also submit that he had already challenged the order framing charge and the same is pending consideration before this Court.
5. Mr. Verma, learned State counsel, would further submit that the petitioners are accused standing trial for the offence under Section 304B read with Section 34 of the IPC and as such, no ground is made out for transfer of the criminal case and therefore the transfer petition deserves to be dismissed.
6. I have heard learned counsel for the parties and considered their rival submissions and also went through the record with utmost circumspection.
1 (2012) 3 SCC 132 3
7. The instant petition for transfer of criminal case has been filed under Section 407 of the CrPC. Section 407 of the CrPC states as under: -
"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.
(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
(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 grounds on which it is made; and no order shall be made on of 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) Where 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 section 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 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."
8. A careful perusal of the aforesaid provision would show that transfer of criminal case from one criminal court to another criminal court has to made on any of the grounds enumerated in Section 407(1)(a) to (c) of the CrPC and specific ground has to be pleaded and to be made out in order to exercise the jurisdiction under Section 407 of the CrPC, mere presumptions of possible apprehensions of the party to lis are 5 not sufficient to attract and invoke the provisions under Section 407 of the CrPC.
9. In the instant case, the star ground raised on behalf of the petitioners is that the Court at Raipur where presently the sessions trial is pending consideration for offence under Section 304B read with Section 34 of the IPC lacks jurisdiction and therefore the transfer petition should be allowed and the criminal case be sent to the Court at Kawardha. It is fairly admitted by learned counsel for the petitioners that charge has been framed by that Court and that order has been questioned by the petitioners before this Court which is pending consideration. As such, while considering the petition under Section 407 of the CrC, it would not be appropriate to this Court to consider the question of jurisdiction of the court dealing with the subject trial, as it will be considered by the appropriate court. However, in order to seek transfer under Section 407 of the CrPC, the petitioners are required to clearly make out a case pleading any of the grounds mentioned in Section 407(1)(a) to (c) of the CrPC.
10. In that view of the matter, since no such ground under Section 407(1)
(a) to (c) of the CrPC is made out for transfer of criminal case from Raipur to Kawardha, in the considered opinion of this Court, the petition for transfer deserves to be dismissed. However, the petitioners are at liberty to file application for personal exemption before the trial Court which will be considered by that Court in accordance with law.
11. In that view of the matter, the transfer petition is dismissed on merits. However, it is made clear that this Court has not expressed any opinion on the question of jurisdiction. No order as to cost(s).
Sd/-
(Sanjay K. Agrawal) Judge Soma