Jammu & Kashmir High Court
Balram Krishan Aggarwal & Ors. vs Union Of India on 26 October, 2018
Equivalent citations: AIRONLINE 2018 J AND K 271
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
1
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CRTA No. 23/2016, IA No. 01/2016
Date of order:- 26.10.2018
Balram Krishan Aggarwal and ors. Vs. Union of India
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For the Petitioner(s) : Mr. Varut Kumar Gupta, Advocate.
For the Respondents(s) : None.
i/ Whether to be reported in : Yes/No
Press/Media
ii/ Whether to be reported in : Yes/No
Digest/Journal
1. The instant application has been moved under Section 526 of Code of Criminal Procedure for transfer of Criminal Complaint titled, "Union of India through Drugs Inspector Siddharth Sahai Malhotra Vs. Sanjeev Aggarwal and ors." pending before the Court of learned Chief Judicial Magistrate, Srinagar to any other competent Court preferably at Jammu on account of prevailing law and order problem in Kashmir valley.
2. The grounds taken in the instant application are that the respondent has filed a criminal Complaint under Section 18 (a) (i) read with Section 27 (d) of Drugs and Cosmetics Act, 1940 before the Court of learned Chief Judicial Magistrate, Srinagar and the petitioners have caused their respective appearances before the Court below. The above said Complaint is pending for appearance of other accused persons and the Court below has issued the process against them.
3. The proceedings initiated by the respondent against the petitioners have been instituted upon a Complaint and hence, the procedure laid down in the Code of Criminal procedure of trial of summons cases is to be followed. Further the offences alleged are punishable with an imprisonment, which may extend CRTA No. 23/2016 a/w IA No. 01/2016 Page 1 of 3 2 to two years and with fine. The applicants/petitioners are filing the present Criminal Transfer Application, seeking transfer of the above mentioned Complaint from Srinagar to Jammu on account of prevailing law and order problem in Kashmir Valley and also on other grounds, which are detailed herein as under:-
(a) Due to law and order problem and curfew prevailing in Kashmir province, it is not possible for the petitioners, who are the residents of outside of J&K to visit Kashmir province for causing appearance on each and every date of hearing. The petitioners on account of prevailing situation cannot attend the proceedings before the Court below under atmosphere of fear and threat.
(b) The petitioner Nos. 1 and 2 (female) are senior citizens and above the age of 68 years and as such, taking into consideration of their age, the present application needs to be allowed.
Further on account of age factor and old age ailments, it is not possible for the petitioner Nos. 1 and 2 to travel all along from Chandigarh to Srinagar and undergo long and arduous journey.
(c) Further, the petitioner Nos. 3 and 4 are also females and it is also not possible for the petitioners to visit Kashmir on account of prevailing law and order situation. Further, petitioner No. 4 is having a small child of three months and it is not possible for her to travel all along from Himachal Pradesh to Srinagar with her minor child on each and every date of hearing.
(d) The petitioners are invoking powers of the Hon'ble High Court under Section 526 of Code of Criminal Procedure and the Court can transfer a case and pass necessary orders under circumstances, which will tend to the general convenience of the parties or witnesses.
(e) The Regional Office of respondent/complainant is based at Chandigarh (Regional Office of Central Drugs Standards Control Organization Sector 39-C, Chandigarh) and as such, prayer of the petitioners can be allowed. Needless to mention here that respondent being a complainant in the Complaint is also travelling all along from Chandigarh to Srinagar.
(f) Even the sub-office of the respondent is based at Jammu situated at Office of Deputy Controller Drugs and Food Control Organization, Muthi, Jammu (as per the address stated in title of the complaint) and as the proceedings in the complaint can be managed and taken care by the respondent-department at Jammu.
(g) The present Criminal Transfer Application needs to be allowed on the ground that since the proceedings pending before the Court below are instituted upon a complainant and the respondent/complainant can come to Jammu for deposing/making statement as and when the matter is fixed for evidence of the complainant instead of coming to Srinagar.
CRTA No. 23/2016 a/w IA No. 01/2016 Page 2 of 3 3(h) The present application needs to be allowed on the ground that almost all the material witness mentioned in the Complaint (complainant and witness No. 2-Drugs Inspector P. Manavalan) belongs to outside State of J&K and only, two witnesses belongs to Srinagar and in this regard, petitioners undertakes to bear any expenses, which the Hon'ble Court may fix as their travelling expenses.
(i) All these grounds have been taken inter alia without prejudice to each other and other grounds shall be urged at the time of hearing and arguments.
4. I have heard learned counsel for the petitioners and have perused the record.
5. In view of the grounds taken by the petitioners in the instant transfer application, it is evident that the petitioners are the residents of different States, i.e., Punjab, Haryana, Chandigarh and Himachal Pradesh, whereas respondent/complainant has head office at Chandigarh and branch office at Muthi, Jammu. All the petitioners have to travel all along from their respective city to Srinagar for attending the case. As already held sub-office of the respondent is based at Jammu and is situated at Office of Deputy Controller Drugs and Food Control Organization, Muthi, Jammu. In this way, instead of Srinagar, both the parties can easily prosecute the case at Jammu. No prejudice shall be caused to any party in case the above mentioned complaint-case is transferred from the Court of learned Chief Judicial Magistrate, Srinagar to the learned CJM, Jammu.
6. In this view of the matter, the instant application is allowed and the criminal complaint-case is withdrawn from the court of Chief Judicial Magistrate, Srinagar and is transferred to CJM, Jammu, who may try the complaint himself or may transfer it to any other court of competent jurisdiction.
7. Let copy of this order be sent to both the Courts below, namely, Chief Judicial Magistrate, Srinagar and CJM (Chief Judicial Magistrate, Jammu) for compliance.
(Sanjay Kumar Gupta) Judge Jammu 26.10. 2018.Ram Krishan CRTA No. 23/2016 a/w IA No. 01/2016 Page 3 of 3