Rajasthan High Court - Jodhpur
Smt Krishna Bhishnoi vs Omprakash Bishnoi on 23 October, 2021
Author: Manoj Kumar Garg
Bench: Manoj Kumar Garg
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Crl.misc.trnfr.pet. No. 43/2019
Smt Krishna Bishnoi W/o Omprakash Bishnoi D/o Ramniwas
Bishnoi, Aged About 23 Years, Presently Residing At Jaroda,
Tehsil Merta, Police Station Merta Road, District Nagaur (Raj.).
----Petitioner
Versus
1. Omprakash Bishnoi S/o Patram Bishnoi, Aged About 26
Years, R/o Daran Ki Dhai, Ren, Presently Residing At, Unit
Headquarter, Helicopter Training Centre, Airforce Station
Hakimpet, Sikandarabad, Telangana. (Husband-
Applicant).
2. Smt. Bhanwari Devi W/o Patram, Aged About 45 Years,
R/o Daran Ki Dhani, Ren, Presently Residing At Plot No.
20, Darbar Nagar, Nandra Road, Khokhariya, Behind
Kshitij Petrol Pump, Banar Road, Jodhpur.
3. Patram Bishnoi S/o Ramrakh Bishnoi, Aged About 48
Years, R/o Daran Ki Dhani, Ren, Presently Residing At Plot
No. 20, Darbar Nagar, Nandra Road, Khokhariya, Behind
Kshitij Petrol Pump, Banar Road, Jodhpur.
----Respondents
For Petitioner(s) : Mr. Vinod Sharma
For Respondent(s) : Mr. Rajendra Choudhary
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
Order 23/10/2021 The present transfer petition has been filed by the petitioner with the prayer that the Misc. Case No. 295/2019 'State Vs. Om Prakash & Ors) pending before the learned Judicial Magistrate No.5, Jodhpur Metrpolitan may be transferred to the court of Judicial Magistrate, Merta city, District Nagaur. (Downloaded on 26/10/2021 at 09:00:11 PM)
(2 of 5) [CRLTP-43/2019] Counsel for the petitioner argued that the petitioner had lodged an FIR against the respondents for offence under Section 498A, 406, 323 & 376 IPC. Considering the nature of offence under Section 376 IPC and place of offence, the FIR was transferred to Police Station, Banar, District Jodhpur. However, the police filed chargesheet against the respondents for offence under Section 498A, 406 and 323/34 IPC. It is argued that since the respondents are exonerated from the offence under Section 376 IPC, there is no reason for trial of the case in Jodhpur instead of Merta. It is submitted that the petitioner being lady it is very difficult for her to travel to Jodhpur from her residential place at Merta. Moreover, the petitioner has filed applications under Section 12 of the Domestic Violence Act, 2005 and Section 125 Cr.P.C. for interim maintenance which are also pending before the courts at Merta, therefore, the Misc. Case No. 295/2019 may also be transferred to court of Judicial Magistrate, Merta City, District Nagaur.
Per contra, counsel for the respondent opposed the prayer made by the petitioner and submits that since the offences have been alleged to be committed at Jodhpur, therefore, the court at Merta city has no jurisdiction to try the same. It is argued that no case is made out for transfer of the case from Jodhpur to Merta city and the petition is liable to be rejected.
I have heard counsel for the petitioner and perused the documents on record.
From the perusal of record, it is evident that the petitioner is staying at Merta City and she has also filed application under Section 125 Cr.P.C before the learned Additional Civil Judge and Judicial Magistrate, Merta and also petition under Section 12 of the (Downloaded on 26/10/2021 at 09:00:11 PM) (3 of 5) [CRLTP-43/2019] Protection of Women from Domestic Violence Act, 2005 before the court of Judicial Magistrate, Merta city, which are pending consideration. Moreover, earlier considering the nature of offence under Section 376 IPC and place of offence, the FIR was transferred to Police Station, Banar, District Jodhpur. However, the police filed chargesheet against the respondents for offence under Section 498A, 406 and 323/34 IPC only and exonerated the accused respondents from the offence under Section 376 IPC, therefore, there is no hindrance for transferring the trial of the case to Merta.
Hon'ble Supreme Court in the case of Ruhi v. Anees Ahmad & others in SLP (Criminal) No. 106 of 2017 decided on 06.01.2020, observed that:
"We are unable to accept the submissions of the learned senior counsel for respondent no. 1. The point that arises in this case is no more res integra as it is covered by the judgment of this Court in Rupali Devi (supra). It was held by this Court as follows:
"14. Even if the acts of physical cruelty committed in the matrimonial house may have ceased and such acts do not occur at the parental home, there can be no doubt that the mental trauma and the psychological distress caused by the acts of the husband including verbal exchanges, if any, that had compelled the wife to leave the matrimonial home and take shelter with her parents would continue to persist at the parental home. Mental cruelty borne out of physical cruelty or abusive and humiliating verbal exchanges would continue in the parental home even though there may not be any overt act of physical cruelty at such place.(Downloaded on 26/10/2021 at 09:00:11 PM)
(4 of 5) [CRLTP-43/2019]
15. The provisions contained in Section 498-A of the Penal Code, undoubtedly, encompass both mental as well as the physical well-being of the wife. Even the silence of the wife may have an underlying element of an emotional distress and mental agony. Her sufferings at the parental home though may be directly attributable to commission of acts of cruelty by the husband at the matrimonial home would, undoubtedly, be the consequences of the acts committed at the matrimonial home. Such consequences, by itself, would amount to distinct offences committed at the parental home where she has taken shelter. The adverse effects on the mental health in the parental home though on account of the acts committed in the matrimonial home would, in our considered view, amount to commission of cruelty within the meaning of Section 498-A at the parental home. The consequences of the cruelty committed at the matrimonial home results in repeated offences being committed at the parental home. This is the kind of offences contemplated under Section 179 CrPC which would squarely be applicable to the present case as an answer to the question raised.
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."
Looking to the facts and circumstances of the case and the reasons mentioned in the transfer petition, this petition is allowed. (Downloaded on 26/10/2021 at 09:00:11 PM)
(5 of 5) [CRLTP-43/2019] It is ordered that the Crl. Misc. Case No. 295/2019 'State Vs. Om Prakash & Ors) pending in the court of Judicial Magistrate, Jodhpur Metropolitan be transferred to the court of learned Judicial Magistrate, Merta City, Distt. Nagaur.
The Judicial Magistrate, Jodhpur Metropolitan is directed to send the record of the case to court of Judicial Magistrate, Merta City, Nagaur.
(MANOJ KUMAR GARG),J 123-BJSH/-
(Downloaded on 26/10/2021 at 09:00:11 PM) Powered by TCPDF (www.tcpdf.org)