Rajasthan High Court - Jaipur
Bhanwar Lal Mishra vs State Of Rajasthan And Ors. on 11 May, 1999
Equivalent citations: II(1999)DMC325, 1999(3)WLC584
JUDGMENT Arun Madan, J.
1. Heard.
By way of the instant transfer petition filed under Section 407, Criminal Procedure Code, the petitioner who is the father of the deceased Smt. Rajkumari has sought transfer of proceedings pending before the learned Additional Sessions Judge No. 2, Siker for offences punishable under Sections 304-B and 498-A, Indian Penal Code to the equivalent Court of competent jurisdiction at Jodhpur on the ground inter alia that from the very beginning, the non-petitioners No. 2 to 4 had indulged in cruel behaviour towards his late daughter Smt. Rajkumari. The allegations are regarding unreasonable dowry demand made by them. In para 13 of the petitioner, it has been contended as under :
"That a fair and impartial,enquiry/trial cannot be had at the Court at Siker because the petitioner cannot produce himself and his other family members in the Court as witnesses due to the threatening of the accused and the accused are trying to influence the Police, Bar and witnesses etc. at Siker."
2. In order to verify the veracity of the aforesaid contentions as advanced by the learned Counsel for the petitioner, it is eminently necessary in the interest of justice that the petitioner should first spell out reasons as to why he wishes to get the proceedings transferred and withdrawn from the Trial Court at Siker where challan has already been filed by the prosecution and further proceedings in the matter of recording of evidence of prosecution witnesses is in progress. No evidence has been produced by the complainant - petitioner with regard to threats conveyed to the petitioner by way of FIRs. registered against the concerned witnesses who have extended such threats to the petitioner or any of his family members. The statement made in para 13 of the petition that "the accused are trying to influence the police, bar and witnesses etc. at Siker" is not substantiated by any cogent and satisfactory evidence. It has further not been contended by the complainant as to what are those reasons for which he wants transfer of proceedings from the Trial Court at Siker to the equivalent and Competent Court at Jodhpur where he is residing.
3. Prima facie, I am of the view that proceedings cannot be transferred on mere wishes and saying of a party seeking transfer of such proceedings unless and until the statutory requirements as stipulated under Section 407, Criminal Procedure Code are complied with at the first instance. The Court has to prima facie satisfy that (a) 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 of witnesses or is expedient for the ends of justice.
4. Before any order of transfer can be passed, the Court also has to satisfy that apart from the aforesaid requirement, the witnesses who are likely to be examined by the prosecution in support of its case, no inconvenience or prejudice should be caused to them. It has not been made clear by the complainant as to how many witnesses are required to be examined by the prosecution in the instant case nor it has been stated as to how many witnesses are to be examined by the complainant in support of his defence. No allegation has been made against the Trial Court with regard to the fact is to why fair and impartial trial is not possible before the concerned Trial Court at Siker nor it has been made known as to what are those exceptional circumstances for which proceedings should be withdrawn from the Trial Court at Siker and be transferred to the equivalent and Competent Court at Jodhpur. The law is well settled that proceedings should not be withdrawn at the whims and wishes of the party and before any order is passed of transfer whether any justifiable cause has been made out for it. The transfer petition in my view fails to meet the aforesaid requirement and is devoid of any merit. Hence, the same is accordingly dismissed as not maintainable.
5. I have been informed by the learned Counsel for the petitioner during the course of hearing that the complainant who is a permanent resident of Jodhpur is receiving constant threats at the behest of accused-non-petitioners 2 to 4, namely Prakash s/o Shri Rama Kishan, Janardhan s/o Shri Rama Kishan and Gopal s/o Shri Rama Kishan, all residents of Rewasa, Tehsil Dataramgarh, District Siker. More- over the petitioner who is an old man has to travel on every hearing from Jodhpur to attend to the proceedings pending before the Additional Sessions Judge No. 2, Siker. His other family members are also required to be examined as prosecution witnesses before the learned Additional Sessions Judge No. 2, Siker.
6. I consequently direct the Collector, Siker to provide full protection to the petitioner as well as his witnesses who are likely to be examined before the said Court whenever they are summoned to appear before the concerned Trial Court provided due intimation is conveyed by the petitioner and his witnesses regarding the respective dates of hearing fixed before the Trial Court. It is further directed that the trial of the case shall be expeditiously conducted having regard to the fact that the petitioner has lost his daughter, namely, Smt. Rajkumari @ Raju @ Shakuntala who was married to accused-respondent No. 2 for which the accused-respondent Nos. 2 to 4 have been charged for offences punishable under Sections 304-B and 498- A, Indian Penal Code. It is further directed that the trial in all probability should not exceed 6 months from the date of receipt of certified copy of this order. A copy of this order be also sent to Additional Sessions Judge No. 2, Siker as well as Collector, Siker and to S.P./Addl. S.P., Siker for immediate compliance.
7. It is further directed that the petitioner shall be at liberty to place any material evidence on the record of the Trial Court in case he receives any threats from the accused upon which the Trial Court shall take note of it and pass appropriate orders in accordance with law. The aforesaid directions have become necessary to be given in the interest of fair and impartial trial.
The transfer petition is accordingly dismissed with the aforesaid observations.