Jammu & Kashmir High Court
Kamal Rohmetra Age 46 Years vs Kabir Dar on 10 February, 2023
Author: Mohan Lal
Bench: Mohan Lal
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CRTA No. 3/2016
CrlM No.826/2022
IA No. 1/2016, CrlM No.
2434/2021
CrlM Nos. 591 & 1528/2022
Reserved on: 19.12.2022
Pronounced on: 10.02.2023
Kamal Rohmetra Age 46 years ....Petitioner(s)
S/o Late S. D. Rohmetra, R/o 19-C Extn.
Gandhi Nagar, Jammu.
Through :- Mr. Sunil Sethi, Sr. Advocate with
Mr. InderJeet Gupta, Advocate
Mr.Yatin Mahajan, Advocate
V/s
Kabir Dar ....Respondent(s)
Director General Indian System of
Medicines, J&K Srinagar.
Through :- Mr. S. K. Bhat, Advocate
Coram: HON'BLE MR. JUSTICE MOHAN LAL, JUDGE
ORDER
1. By the medium of instant criminal transfer application filed under Section 526 of the Code of Criminal Procedure, Svt. 1989, (hereinafter referred as „Code‟), petitioner seeks transfer of the criminal complaint titled „Kabir Dar vs Kamal Rohmetra‟ File No. 104/Alif/15, pending in the Court of Judicial Magistrate (Sub-Registrar) Srinagar to any other competent court of jurisdiction at Jammu.
2. The case set up by the petitioner is, that the respondent has filed a false and baseless complaint alleging therein that the petitioner published news item in the newspaper Daily Excelsior issued dated 4 th October, 2015 under the head "Inquiry confirms ISM fraud certificate scam by Director"
and vide trial court order dated 12.12.2015 a process against the petitioner u/s 499 RPC has been issued; that a PIL No. 06 of 2014 titled Abdul Rashid Tantray vs State and others was pending in the Srinagar Wing of J&K High Court wherein petitioner has been arrayed as respondent No.3 in the said PIL for the allegations that the respondent by misusing his 2 CRTA No. 3/2016 official position as a Director ISM has issued DAWASAAZ(Pharmacist) ISM Certificates in favour of hundreds of persons including private respondents when none of them have ever been admitted in any college or institute for undergoing such training or having attended classes or practicals without appearing in any tests or examinations, such candidates have never been selected on the basis of entrance, competitive test for imparting any training if any, yet certificates have been sold of DAWASAAZ(Pharmacist) ISM on monetary considerations, more surprisingly in glaring violation; that in addition to the points raised in the writ petition the arbitrary and malafide method of selecting candidates for the said training course without conducting any test or selection process from amongst eligible candidates so that merit could be evaluated and selection made accordingly; that respondent No.2 figuring in PIL No. 06 of 2014 i.e Commissioner/Secretary Health and Medical Department realizing this fraud issued Govt. Order No. 121-HME of 2008 dated 17thOctober 2008 pursuant to which the list forwarded by respondent No.3 i.e the respondent herein in the present petition i.e Director ISM J&K to Commissioner/Secretary Health and Medical Department of as many as 994 candidates for DAWASAAZ training was withdrawn and cancelled by the Govt.; that some of the candidates have challenged the said cancellation order through OWP No. 839/2008 and the writ Court after taking serious cognizance of this fraudulent and arbitrary method of selecting candidates for training, dismissed the writ petition and while dismissing the writ petition, issued specific directions as to how said selection for undergoing training of DAWASAAZ (Pharmacist) can be issued by respondents in the writ petition; that the Govt. ordered inquiry into the facts of the case forming the subject of the PIL No. 06/2014, the inquiry officer conducted the inquiry and submitted his report appears to have been published in the newspaper which inquiry report has been made the basis for filing the complaint against the petitioner herein by respondent Kabir Dar; that the motive behind the filing of the complaint is only to drag the petitioner to valley and to get the petitioner eliminated because the petitioner is running the leading newspaper of the State which has wide circulation and the newspaper condemns anti-national activities carried on by the anti-national elements in the state especially in the valley; that the petitioner apprehends threat to his life and is not in a 3 CRTA No. 3/2016 position to fairly face the trial in the court of Judicial Magistrate (Sub- Registrar), Srinagar owing to his being the journalist and proprietor of a newspaper Daily Excelsior he is receiving threats to his life off and on from anti-national elements because of his fair reporting; that the petitioner is facing great hardship, inconvenience in visiting the valley, there is every likelihood of him being eliminated, as such, the petitioner is not in a position to appear and attend the trial court of Judicial Magistrate (Sub-Registrar) Srinagar and face the trial. Prayer has been made for transfer of criminal complaint titled „Kabir Dar vs Kamal Rohmetra‟ pending in the Court of Judicial Magistrate (Sub-Registrar) Srinagar to any other court at Jammu.
3. Respondent has opposed the instant transfer application by filing objections, wherein, it has been stated that the respondent was serving as Director General Indian System of Medicines J&K Srinagar and on 14.10.2015, petitioner published a defamatory news item in his news paper Daily Excelsior under the head "enquiry confirms ISM fraud certificate scam by the director", this news item shocked the respondent and directly injured the reputation which the respondent enjoys in the society. It is contended, that after the publication of the aforesaid news item, the respondent filed a criminal complaint in terms of Section 499 of RPC in the Court of Judicial Magistrate (Sub Registrar) Srinagar and the Judicial Magistrate after going through the averments made in the complaint and also complying the chapter governing the filing of the private complaint under criminal procedure code issued process against the petitioner, along with the complaint, respondent herein also furnished a list of witnesses which are required to be examined during the trial and all the witnesses are resident of Kashmir as the respondent enjoys a good reputation among the people of Srinagar. It is stated, that as per the mandate of Section 179 Cr.PC the accused is required to be tried in district where act is done or where consequences ensues, in the present case the petitioner herein is the accused in the aforesaid complaint, petitioner has no difficulty or hindrance to attend the court of Judicial Magistrate (Sub- Registrar) Srinagar because the petitioner has already having his office at Srinagar, on many occasions the petitioner use to visit his office at Srinagar, after the filing of the complaint by the respondent, the Judicial Magistrate issued process against the petitioner, petitioner opt not to 4 CRTA No. 3/2016 respect the summons/notice thereby the Judicial Magistrate 1 st Class constrained to issue non-bailable warrant against the petitioner, and against the aforesaid non-bailable warrant the petitioner filed a writ petition before the Hon‟ble High Court of J&K at Srinagar under Article 226 of the Constitution of India whereby seeking quashment of the order passed by the Judicial Magistrate (Sub Registrar) Srinagar whereby cognizance has been taken against the petitioner. It is contended, that on one hand petitioner is seeking transfer of criminal complaint at Jammu Bench, on the other hand, he is seeking quashment of criminal complaint at Srinagar Bench, the issue is of serious concern, therefore, it is prayed that the present transfer application filed by the petitioner be dismissed in the interest of justice.
4. Mr. Sunil Sethi, learned senior counsel for the petitioner has sought the transfer of instant criminal complaint by vehemently articulating arguments, that the petitioner apprehends threat to his life, he is not in a position to fairly face the trial in the court at Srinagar owing to his being the journalists and proprietor of a newspaper Daily Excelsior he is receiving threats to his life off and on from anti-national elements because of his fair reporting. It is argued, that petitioner would be facing great hardship, inconvenience in visiting the valley, there is every likelihood of him being eliminated, the fair and impartial trial could not be guaranteed in such an atmosphere where the petitioner apprehends threat to his life the fair and impartial trial being the basic right of an accused which will be snatched in case the trial is allowed to be continued in the Court of Judicial Magistrate (Sub Registrar) Srinagar. It is vehemently argued, that a Coordinate Bench of this Court has already allowed transfer applications wherein the cases have been transferred from competent court of jurisdiction at Srinagar to the competent court of jurisdiction at Jammu on the ground security threat. To support his arguments, learned counsel has placed reliance on the judgment of this Court, viz; Dr. Arshid Hussain Wani vs. Editor Daily Excelsior and another [Trp (C) No. 01/2022, CM No. 44/2022].
5. Per contra, Mr. S. K. Bhat, learned counsel for the respondent has strenuously argued, that the petitioner has no difficulty or hindrance to attend the court of Judicial Magistrate (Sub Registrar) Srinagar because the petitioner has already having his office at Srinagar and on many 5 CRTA No. 3/2016 occasions the petitioner used to visit his office at Srinagar. It is argued, that as per the mandate of Section 179 Cr.P.C the accused is required to be tried in district where act is done or where consequences ensues, complainant is a resident of Srinagar and has filed the above titled criminal complaint at Srinagar, all the witnesses are resident of Kashmir which are required to be examined during the trial and it would be impossible for the complainant and his witnesses to appear in Jammu Court. It is argued, that the complaint filed by the respondent against the petitioner is genuine and bonafide and on the basis of prima facie evidence produced before the trial Court, cognizance of the offence u/s 499 of RPC has been taken and process issued against the petitioner in the year 2015, however, till date, petitioner is avoiding his presence and is not appearing before the trial Court at Srinagar, prayer has been made for dismissal of the writ petition.
6. I have heard learned counsel for the parties, perused the averments of the transfer application, objections filed by the respondent and the relevant law on the subject matter coupled with the judgment relied upon by learned counsel for the petitioner.
7. The issue of transfer of cases was considered by the Hon‟ble Apex Court in Kulwinder Kour @ Kulwinder Gurcharan Singh vs. Kandi Friends Education Trust and others, 2008 (3) SCC 659 and while considering transfer of cases from one Court to another, Hon‟ble Apex Court has held as under;
"Although the discretionary power of transfer of cases cannot be imprisoned within a strait-jacket of any cast-iron formula unanimously applicable to all situations, it cannot be gainsaid that the power to transfer a case must be exercised with due care, caution and circumspection. Reading Section 24 and 25 of the Code together and keeping in view various judicial pronouncements, certain broad propositions as to what may constitute a ground for transfer have been laid down by Courts. They are balance of convenience or inconvenience to plaintiff or defendant or witnesses; convenience or inconvenience of a particular place of trial having regard to the nature of evidence on the points involved in the suit; issues raised by the parties; reasonable apprehension in the mind of the litigant that he might not get justice in the court in which the suit is pending; important questions of law involved or a considerable section of public interested in the litigation; interest of justice demanding for transfer of suit, appeal or other proceedings, etc. Above are some of the instances which are germane in considering the 6 CRTA No. 3/2016 question of transfer of suit, appeal or other proceedings. They are, however, illustrative in nature and by no means be treated as exhaustive. If on the above or other relevant considerations, the Court feels that the plaintiff or the defendant is not likely to have a fair trial in the Court from which he seeks to transfer a case, it is not only the power, but the duty of the Court to make such order."
8. Admittedly, the court of Judicial Magistrate (Sub Registrar) Srinagar has issued process against the petitioner in the complaint filed by the respondent in terms Section 499 of RPC. The apprehension of the petitioner is that it would be difficult for him to defend his case in Srinagar in view of the threat perception to the journalists. Fair and impartial trial is the basic right of a litigant which right will be snatched in case the trial is allowed to be continued at Srinagar. Due to recent targeted killings in Kashmir Valley, it would not be safe for the petitioner to attend the trial Court and see the fruits of his litigation. Petitioner being a reputed journalist and owner of reputed paper "Daily Excelsior" due to his security concerns would not get fair trial/justice. In Dr. Arshid Hussain Wani vs. Editor Daily Excelsior and another [Trp (C) No. 01/2022, CM No. 44/2022], relied by learned counsel for petitioner, already one case against petitioner has been transferred from the Court of 1st Additional Munsiff Srinagar to the Court of 1st Additional Munsiff Jammu by Coordinate Bench of this Court vide order dated 30.05.2022. Viewed thus, petitioner has carved out a strong case for transfer of criminal complaint against him from the court of learned Judicial Magistrate (Sub-Registrar) Srinagar bearing File No. 104/Alif/15 to the Court of competent jurisdiction at Jammu. This being so, criminal transfer application is allowed. It is, accordingly, ordered, that the criminal complaint titled Kabir Dar vs Kamal Rohmetra under Section 499 RPC pending on the files of learned Judicial Magistrate (Sub-Registrar) Srinagar stands transferred to the court of learned Judicial Magistrate (Sub- Registrar) Jammu. The Court of Judicial Magistrate (Sub-Registrar) Srinagar shall transmit the record of the case to the transferee Court forthwith. Petitioner shall bear all the expenses of the witnesses cited by the respondent in the complaint including the complainant during the trial of the complaint by the transferee court. The transferee court of Judicial Magistrate (Sub- Registrar) Jammu, shall deal with the complaint in accordance with the 7 CRTA No. 3/2016 provisions of law. On receipt of the file, the transferee court shall secure the attendance of the parties as per the provisions of law. Registry is directed to convey the order to both the courts below.
9. Disposed of accordingly.
(Mohan Lal) Judge Jammu:
10.02.2023 Vijay