Chattisgarh High Court
Smt. Suchita Rai vs Smt. Anjali Rai on 11 October, 2022
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Transfer Petition (Criminal) No. 31 of 2022
Smt. Suchita Rai, W/o Shri Rajesh Rai, Aged 55 years, Occupation
Teacher, R/o Namnakala, Ambikapur, Distt. Surguja, Chhattisgarh.
---Petitioner
Versus
Smt. Anjali Rai W/o Ashish Rai, Aged about 32 years, Occupation
Teacher, D/o Shri Radha Krishna Rai, R/o 1/C-11, SECL Colony,
Bishrampur, Distt. Surajpur, Chhattisgarh.
---Respondent
For Petitioner :- Mr. Manoj Paranjpe, Advocate Hon'ble Shri Justice Sanjay K. Agrawal Order on Board 11/10/2022
1. The marriage of respondent Smt. Anjali Rai was solemnized with Ashish Rai on 09/02/2020 at Ambikapur and immediately thereafter, matrimonial dispute arose between them which resulted into lodging of first information report by the respondent herein against her husband, father-in-law, mother-in-law (petitioner herein) and brother- in-law wherein charge-sheet was filed before the criminal court i.e. Judicial Magistrate First Class, Surajpur being Criminal Case No. 978/2021 under Crime No. 60/2021 for offence punishable under Section 498A read with Section 34 of IPC and it is pending consideration before the said Court. In the meantime, the respondent 2 herein filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short, 'the Act of 2005') before the Court of Chief Judicial Magistrate, Surajpur registered as MJC No. 71/2021, which is also pending consideration before that Court.
2. The petitioner herein, being the mother-in-law of respondent, has preferred this transfer petition seeking transfer of both the aforesaid cases from Surajpur to Ambikapur, as she is finding it difficult to travel to Surajpur in order to contest these matters.
3. Mr. Manoj Paranjpe, learned counsel for the petitioner, would submit that petitioner, aged about 55 years, is suffering from various medical ailments due to which she is facing difficulty in attending the court proceedings at Surajpur, as such, the instant transfer petition be allowed and the cases be transferred to the court of competent jurisdiction at Ambikapur.
4. I have heard learned counsel for the petitioner, considered his submissions made herein-above and perused the record.
5. Transfer of cases has been sought by the petitioner in accordance with Section 407 of the CrPC. Section 407(1) 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 3 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."
6. Section 407 of the CrPC contains an important provision of law, and one that is frequently resorted to. It can be brought into action by the party when only when one or more of the following five conditions are fulfilled: --
(a) a fair and impartial inquiry or trial cannot be had;
(b) some question of law of unusual difficulty is likely to arise;
(c) an order under this section is required by any provision of this Code;
(d) it will tend to the general convenience of the parties or witnesses;
(e) it is expedient for the ends of justice.
Under these conditions only this Court (High Court) alone has jurisdiction to transfer a case under Section 407 of the CrPC. It is in the expediency of the larger interest of justice, this Court may pass an order as incorporated under clauses (i) of Section 407 of the CrPC. 4
7. In a criminal case, the place of inquiry and trial has to be by the court within whose local jurisdiction, the crime was allegedly committed as provided by Section 177 of the CrPC. Section 178 of the CrPC is an exception to the "ordinary rule" contained in Section 177 of the CrPC. The Supreme Court in the matter of Rupali Devi v. State of Uttar Pradesh and others1 has considered the following issue and answered the question in paragraph 16 as under: -
"Whether a woman forced to leave her matrimonial home on account of acts and conduct that constitute cruelty can initiate and access the legal process within the jurisdiction of the courts where she is forced to take shelter with the parents or other family members?"
"16. We, therefore, hold that the courts at the place where the wife takes shelter after leaving or driven away from the matrimonial home on account of acts of cruelty committed by the husband or his relatives, would, dependent on the factual situation, also have jurisdiction to entertain a complaint alleging commission of offences under Section 498-A of the Penal Code."
8. As such, the courts at the place where the wife takes shelter after leaving or driven away from the matrimonial home on account of acts of cruelty committed by the husband or his relatives would have jurisdiction to entertain a complaint alleging commission of offence under Section 498-A of the IPC. In the instant case, the offence is alleged to have been committed within the local limits of criminal courts at Ambikapur/Surajpur and that is the reason why Criminal Case No.978/2021 for offence punishable under Section 498A read with Section 34 of the IPC is pending consideration before the Court of JMFC, Surajpur. The petitioner is seeking transfer only on the ground that she and her family are residing at Ambikapur and it is inconvenient for her to travel from Ambikapur to Surajpur to attend the 1 (2019) 5 SCC 384 5 proceedings, whereas, in view of the provision contained in Section 177 of the CrPC and also in the light of the decision rendered by the Supreme Court in Rupali Devi (supra), undisputedly, the court at Surajpur has jurisdiction to try the offence under Section 498A of the IPC. Thus, it is quite vivid that in the light of Section 177 of the CrPC and in the light of the decision rendered by the Supreme Court in Rupali Devi (supra), the court at Surajpur under whose limit the offence under Section 498A of the IPC is alleged to have been committed, has jurisdiction to try the offence under Section 498A of the IPC. Moreover, most of the witnesses of the offence are also of the complainant side and they are residing at Surajpur. Apart from that, the complainant is admittedly, residing with her parents. As such, by virtue of Section 177 of the CrPC and in view of the decision of the Supreme Court in Rupali Devi (supra), and convenience of parties does not mean convenience of the petitioner(s) alone, it means, convenience of the prosecution, other accused persons and witnesses in larger interest of justice. In that view of the matter, I do not find any merit in the instant transfer petition so far as transfer of Criminal Case No. 978/2021 pending in the Court of JMFC, Surajpur is concerned.
9. Application under Section 12 of the Act of 2005 can be filed before the Court of Judicial Magistrate having jurisdiction by virtue of Section 27 of the Act of 2005 which provides as under: -
"27. Jurisdiction.--(1) The court of Judicial Magistrate of the first class or the Metropolitan Magistrate, as the case may be, within the local limits of which--
(a) the person aggrieved permanently or temporarily resides or carries on business or is employed; or
(b) the respondent resides or carries on business or is 6 employed; or
(c) the cause of action has arisen, shall be the competent court to grant a protection order and other orders under this Act and to try offences under this Act.
(2) Any order made this Act shall be enforceable throughout India."
10. A careful perusal of the aforesaid provision would show that application under Section 12 of the Act of 2005 can be filed by the person aggrieved within the local limits of which the person aggrieved permanently or temporarily resides or carries on business or is employed; or the respondent resides or carries on business or is employed; or where the cause of action has arisen and that court shall be the competent court to grant a protection order and other orders under the Act and to try offences under the Act.
11. In this case, admittedly, the respondent / complainant is residing within the local limits of Surajpur court and cause of action has also arisen in the local limits of Surajpur court and therefore, by virtue of Section 27 of the Act of 2005, that court will be the competent court to entertain the application of protection orders under Section 18 of the Act of 2005 which is pending consideration.
12. Thus, in view of the provision contained in Section 27(1)(a) of the Act of 2005, since the respondent / complainant is residing within the local limits of Surajpur court, therefore, the court at Surajpur will have the jurisdiction to hear the application filed under the Act of 2005. Merely because it is inconvenient to the petitioner and her family, Section 407 of the CrPC cannot be invoked.
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13. In view of the aforesaid discussion, I do not find any merit in the instant transfer petition, it deserves to be and is accordingly dismissed. However, so far as criminal case is concerned, the petitioner is at liberty to file application for temporary / permanent exemption before the court concerned, which shall be considered by that court strictly in accordance with law. No order as to cost(s).
Sd/-
(Sanjay K. Agrawal) Judge Harneet