Poornima vs Chidanand on 21 July, 2014

[Cites 12, Cited by 0]

Karnataka High Court

Poornima vs Chidanand on 21 July, 2014

2. The petitioner by name Smt. Poornima had lodged a complaint against the accused persons i.e., respondent Nos.2 to 4 in Crl. P. No.11242/2013 before the Mahila Police Station, Hubli, for the offences punishable under Sections 498A, 323, 341, 504 and 506 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.' for brevity). The same came to be registered in Crime No.19/2013 and for want of jurisdiction the Mahila Police appears to have transferred the said case for investigation and to report to the HSR Layout Police, Bangalore. The HSR Layout Police have investigated the matter and submitted a charge sheet before the VI Addl. Chief Metropolitan Magistrate, Bangalore City, Bangalore in C.C. No.13770/2013. Adverting several grounds the petitioner had sought for transfer of the said criminal case to any of the Magistrate Court at Dharwad in Crl. P. No.11242/2013. 5

3. The said Smt. Poornima had also filed another petition in C.P. No.605/2013 seeking transfer of M.C. No.2965/2013, pending on the file of Prl. District & Family Court, Bangalore, to the Family Court at Dharwad. The said petition appears to have been filed by her husband Chidananda Saidar in M.C. No.2965/2013 against Smt. Poornima under Section 13 (1) (ia) (ib) of the Hindu Marriage Act, 1955.

4. Learned counsel appearing for the petitioner in criminal petition strenuously contended that earlier petitioner was working at Bangalore and subsequently she has tendered her resignation and started living at Dharwad and out of the 16 witnesses who have been cited in the said petitions, most of them are residing at Hubli and Dharwad. It is argued that C.Ws. 13, 14 and 16 are residing at Bangalore and except these three witnesses all the other witnesses are residents of Hubli and Dharwad. Moreover, he contends that C.Ws.2 and 3 i.e., father and mother of 6 petitioner - Poornima are residing at Dharwad and it is very difficult for them to go to Bangalore to give evidence. Therefore, when such being the case, it is just and necessary to transfer the said case from Bangalore to any of the Magistrate Court at Hubli or Dharwad.

5. Learned counsel appearing for the petitioner in civil petition strenuously contends that if the criminal case is transferred from Bangalore to Dharwad Court then the petitioner has to go to Bangalore to attend the matrimonial case at Family Court in Bangalore. Therefore, he seeks to transfer the matrimonial case to Family Court at Dharwad.

6. Contrary to the above said submissions, learned counsel for the respondents strenuously contends that the cases cannot be transferred at the convenience of the complainant and the witnesses and the Court has to look into the surrounding circumstances of the case and consider whether this is a fit case to be transferred. He specifically 7 contends that at the earlier stages though the petitioner had contended that she is residing at Hubli and Dharwad, subsequently, learned counsel for the petitioner submitted that for the present she has to work at Bangalore itself. He has also produced before the Court the resignation letter submitted by said Poornima tendering her resignation to Rajita Kurup - X (ranjitra - Tech Mahindra at Cisco), but there is no material to show that the said resignation was accepted by the Company and at any point of time she started residing at Hubli or Dharwad after lodging of the complaint. In the above said background the Court has to see whether any grounds have been made out for transferring the above said cases. As per the perusal of charge sheet papers, it is true that some of the witnesses are residing at Hubli and Dharwad. The learned counsel for respondent had also produced some materials before the Court to show that some of the witnesses are residing at Bangalore and he has drawn my attention that the complainant was working in Wipro Company and 8 subsequently she had shifted herself to Ranjita - Tech Mahindra at Cisco and he submits that at any point of time petitioner was not residing at Hubli-Dharwad. He has also drawn my attention that C.W.5 - Murugesh is the brother of petitioner and he is residing at Bangalore and his wife i.e., C.W.7 is also residing with C.W.5. According to the learned counsel for respondents C.Ws.11 and 12 are pancha witnesses and they are not material witnesses to the cases.

7. Looking to the above said circumstances, the accused persons have to appear before the Court on all the future hearing dates, and therefore, it would cause great injustice to the accused persons to come to Hubli-Dharwad to attend the case. Therefore, he pleads that petitions are liable to be dismissed under Section 407 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.' for brevity). Though Section 407 of Cr.P.C. empowers the Court to transfer the cases from one Court to another Court, 9 this Court has to look into the surrounding circumstances. Section 407 of Cr.P.C. reads 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.

8. On meticulous reading of the petition averments, the complainant - petitioner has to make out atleast one of the grounds, under Section 407 of Cr.P.C. Section 407(1)(a) and 407(1)(b) are not pleaded. So far as Section 407(1)(c) is concerned, the learned counsel has pleaded that the general convenience of the parties or the witnesses has to be 10 considered by the Court while transferring the case. But, in my opinion, the Court has to look into the entire circumstances and also whether it causes any inconvenience to the accused persons, hence the Court has to strike a balance between the two.

9. Looking to the factual matrix of the case, it is submitted that though at the initial stages petitioner was residing at Dharwad, but after the marriage she was residing in Bangalore as she was working in a Company and after filing a complaint she shifted herself to Dharwad after tendering resignation to her Company. But, at present, it is further submitted that she is presently residing at Bangalore and working in a Company. Therefore, if the petition is allowed then the complainant has to again come to Dharwad for the purpose of giving the evidence.

10. As rightly contended by learned counsel for petitioner, C.Ws.11 and 12 are the pancha witnesses and if those witnesses are excluded from consideration the other three witnesses i.e., C.Ws. 13, 14 and 16 are the Investigating Officers. It is the duty of the Investigating Officers to attend such Court where the trial is conducted. Therefore, the remaining witnesses have to be taken into consideration. In my opinion, C.Ws. 2 and 3 are the only witnesses, who are aged more than 55 years and they may feel certain inconvenience in attending the Court at Bangalore, but if once the trial begins it will not last long for so many days. If the trial commences, then only the witnesses have to make themselves available to the said Court for one or two days. Moreover complainant, her brother i.e., C.W.5 and his wife i.e., C.W.7 are residing at Bangalore itself and as such C.Ws.2 and 3 can very well accommodate themselves at Bangalore to give evidence at Bangalore Court.

11. On the other hand, as rightly submitted by learned counsel for respondent, it is the bounden duty of the accused persons to appear before the Court on all the hearing dates before the Court, unless prevented by any genuine cause. Though the accused persons are entitled to file an application under Section 205 of Cr.P.C. for their dispensation, but the discretion is left with the accused persons. Therefore, in my opinion, looking to the above said circumstances only for the purpose of accommodating the two witnesses the Court cannot venture upon to transfer the entire case from Bangalore Court to Dharwad Court. Hence, I do not find any strong reason in this particular case to allow the petition and transfer the criminal case to Dharwad/Hubli Court.

12. So far as the Civil Petition is concerned, admittedly, petitioner is residing at Bangalore itself and it would be very convenient for her to attend the Family Court 13 at Bangalore, if the said Matrimonial Case is transferred to Dharwad/Hubli Court, it virtually causes inconvenience to the petitioner herself. Under the above said circumstances, I do not find any strong reason to allow the Civil Petition. Therefore, both the petitions are devoid of merits and are liable to be dismissed. Accordingly, both the petitions are dismissed.

In view of dismissal of main Civil Petition, I.A. No.1/2013 for grant of stay does not survive for consideration. Accordingly, I.A. No.1/2013 is dismissed.

Sd/-

JUDGE hnm/

Unlock Advanced Research with PRISMAI

Karnataka High Court