Chattisgarh High Court
Purvi Jain Bohra vs Ritesh Kumar Bohra on 15 July, 2022
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Transfer Petition (Cr.) No.12 of 2021
Purvi Jain Bohra, Wife of Ritesh Kumar Bohra, aged about
29 years, R/o. Laxmi Varity Centre, Jawahar Market, Camp
2, Power House Bhilai, District Durg (CG) at present R/o.
House No.65, Amrapali, Vananchal City, Power House,
Bhilai, District Durg (CG)
Petitioner
Versus
1. Ritesh Kumar Bohra, aged about 29 years, Son of Suresh
Bohra, R/o. D348, Sector5, Taigore Nagar, Raipur, Tahsil
and District Raipur (CG)
2. State of Chhattisgarh Through District Magistrate, Raipur,
District Raipur (CG)
3. Suresh Bohra son of Bhanwar Lal Bohra, aged about 60
years, R/o D348, Sector5, Taigore Nagar, Raipur, Tahsil
and District Raipur (CG)
4. Kanchan Bohra, wife of Suresh Bohra, aged about 55 years,
R/o D348, Sector5, Taigore Nagar, Raipur, Tahsil and
District Raipur (CG)
Respondents
For Petitioner : Mr.T.K.Jha, Advocate For Res.No.1, 3 and 4 : Mr.Abhyuday Singh, Advocate For Respondent No.2/State : Mr.Sudeep Verma, Dy.G.A. Hon'ble Shri Justice Sanjay K. Agrawal Order on Board 15/7/2022
1. The petitioner herein has filed an application under Section 407 of the CrPC for transferring Criminal Case No.2338/2019 pending before the Judicial Magistrate First Class, Raipur to the Court of Judicial Magistrate First Class, Durg for offences punishable under Section 498A/34 of the IPC.
2. The petitioner being victim in Crime No.38/18 for offence under Section 498A/34 of the IPC has filed this transfer 2 petition stating interalia that she is residing along with her parents at Durg and she has filed a complaint under the provisions of the Protection of Women from Domestic Violence Act, 2015, which is also pending in the Court of Judicial Magistrate First Class, Durg being Criminal Case No.947/2018. Thereafter, she has filed an application under Section 125 of the CrPC for maintenance before the Family Court, Durg, which is registered as Case No.168/2019 and one more application under Section 13(1) of the Hindu Marriage Act, 1955 (hereafter called as 'Act of 1955') is also pending at Family Court, Durt being Case No.500/2019 and respondent No.1's application under Section 9 of the Act of 1955 for restitution of conjugal rights is also pending at Family Court, Durg being Case No.577/2019 and she has 4 years minor child and she is residing at Durg. Therefore, Criminal Case No.2338/2019 pending in the Court of Judicial Magistrate First Class, Raipur be transferred to the Court of Judicial Magistrate First Class, Durg for hearing and disposal in accordance with law.
3. Reply has been filed by respondents No.1, 3 and 4, who are husband, fatherinlaw and motherinlaw of the petitioner stating interalia that chargesheet for offence under Section 498A/34 of the IPC was filed before the Judicial Magistrate First Class, Raipur on 25.3.2019, in which the victim / petitioner has been examined on 10.1.2020 and this transfer petition under Section 407 of the CrPC has 3 been filed by her on 13.7.2021 after her examination before the said Court on 10.1.2020 and even she has been partly crossexamined and even final report has been submitted by the police before the jurisdictional criminal court in the FIR made by the petitioner for offence under Sections 294 and 506/34 of the IPC finding that no offence is made out against respondent No.1. In that view of the matter, the transfer petition deserves to be dismissed.
4. No rejoinder has been filed by the petitioner except certain documents.
5. Mr.T.K.Jha, learned counsel for the petitioner, would submit that since all the cases are pending either in the Court of Judicial Magistrate First Class, Durg or in Family Court, Durg, therefore, it would be appropriate to transfer Criminal Case No.2338/2019 also in the Court of Judicial Magistrate First Class, Durg from the Court of Judicial Magistrate First Class, Raipur. He would further submit that the petitioner has 4 years minor son and her father has also some medical issue, therefore, she is unable to attend the Court at Raipur and therefore, application be allowed.
6. On the other hand, Mr.Abhyuday Singh, learned counsel for respondents No.1, 3 and 4, would submit that this is the case where victim / petitioner has already been examined on 10.1.2020 and thereafter she has also been partly crossexamined on 10.1.2020 and thereafter only on 13.7.2021 this transfer petition has been filed to delay 4 the trial as respondent No.1 is husband and respondents No.3 and 4 are fatherinlaw and motherinlaw, who are aged about 60 years and 55 years and as such, convenience of all have to be seen while transferring the case under Section 407 of the CrPC and as such, it is a where transfer petition deserves to be rejected.
7. I have heard learned counsel appearing for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection.
8. Section 407 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 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. (2) The High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative:
5
Provided that no application shall lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him.
(3) Every application for an order under sub section (1) shall be made by motion, which shall, except when the applicant is the Advocate General of the State, be supported by affidavit or affirmation.
(4) When such application is made by an accused person, the High Court may direct him to execute a bond, with or without sureties, for the payment of any compensation which the High Court may award under subsection (7).
(5) Every accused person making such application shall give to the Public Prosecutor notice in writing of the application, together with copy of the grounds on which it is made; and no order shall be made on of the merits of the application unless at least twenty four hours have elapsed between the giving of such notice and the hearing of the application.
(6) Where the application is for the transfer of a case or appeal from any subordinate Court, the High Court may, if it is satisfied that it is necessary so to do in the interests of justice, order that, pending the disposal of the application, the proceedings in the subordinate Court shall be stayed, on such terms as the High Court may think fit to impose:
Provided that such stay shall not affect the subordinate Court's power of remand under section
309.
(7) Where an application for an order under sub section (1) is dismissed, the High Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider proper in the circumstances of the case.
(8) When the High Court orders under subsection (1) that a case be transferred from any Court for trial before itself, it shall observe in such trial the same procedure which that Court would have observed if the case had not been so transferred. (9) Nothing in this section shall be deemed to affect any order of Government under section 197." 6
9. A careful perusal of the aforesaid provisions would show that this Court can exercise the power of transfer where a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto or some question of law of unusual difficulty is likely to arise or 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 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; 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; any particular case be committed for trial to a Court of Session; or any particular case or appeal be transferred to and tried before itself.
10. The Supreme Court in the matter of Ashish Chadha v. Asha Kumari and another1 has held that transfers ordered merely on the sayso of a party have a demoralising effect on the trial courts and further held that that unless a very strong case based on concrete material is made out, such transfers should not be ordered.
11. The Supreme Court in the matter of Gurcharan Dass Chadha v. State of Rajasthan2 held that transfer should 1 (2012) 1 SCC 680 2 AIR 1966 SC 1418 7 not be made merely on the basis of apprehension but there must be a reasonable apprehension. It was observed as under: "13....... The law with regard to transfer of cases is well settled. A case is transferred if there is a reasonable apprehension on the part of a party to a case that justice will not be done. A petitioner is not required to demonstrate that justice will inevitably fail. He is entitled to a transfer if he shows circumstances from which it can be inferred that he entertains an apprehension and that it is reasonable in the circumstances alleged. It is one of the principles of the administration of justice that justice should not only be done but it should be seen to be done. However, a mere allegation that there is apprehension that justice will not be done in a given case does not office. The Court has further to see whether the apprehension is reasonable or not. To judge of the reasonableness of the apprehension the State of the mind of the person who entertains the apprehension is no doubt relevant but that is not all. The apprehension must not only be entertained but must appear to the Court to be a reasonable apprehension."
12. Similarly, in the matter of Abdul Nazar Madani v. State of T.N. and another3 the Supreme Court has held that the apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary and observed as under: "7.......The apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary, based upon conjectures and surmises. If it appears that the dispensation of criminal justice is not possible impartially and objectively and without any bias, before any court or even at any place, the appropriate court may transfer the case to another court where it feels that holding of fair and proper trial is conducive. No universal or hard and fast rules can be prescribed for deciding a transfer petition which has always to be decided on the basis of the facts of each case.
Convenience of the parties including the witnesses 3 (2000) 6 SCC 204 8 to be produced at the trial is also a relevant consideration for deciding the transfer petition. The convenience of the parties does not necessarily mean the convenience of the petitioners alone who approached the court on misconceived notions of apprehension. Convenience for the purposes of transfer means the convenience of the prosecution, other accused, the witnesses and the larger interest of the society."
13. In the matter of Capt. Amarinder Singh v. Prakash Singh Badal and others4 while dealing with an application for transfer under Section 406 CrPC, their Lordships of the Supreme Court have opined that for transfer of a criminal case, there must be a reasonable apprehension on the part of the party to a case that justice will not be done and it cannot be directed only on apprehension. It was observed as under: "19. Assurance of a fair trial is the first imperative of the dispensation of justice. The purpose of the criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. When it is shown that the public confidence in the fairness of a trial would be seriously undermined, the aggrieved party can seek the transfer of a case within the State under Section 407 and anywhere in the country under Section 406 CrPC.
20. However, the apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary. Free and fair trial is sine qua non of Article 21 of the Constitution. If the criminal trial is not free and fair and if it is biased, judicial fairness and the criminal justice system would be at stake, shaking the confidence of the public in the system. The apprehension must appear to the court to be a reasonable one."
14. Finally, the Supreme Court in the matter of Usmangani Adambhai Vahora v. State of Gujarat and another 5 has held 4 (2009) 6 SCC 260 5 (2016) 3 SCC 370 9 that seeking transfer at the drop of a hat is inconceivable. An order of transfer is not to be passed as a matter of routine or merely because an interested party has expressed some apprehension about proper conduct of the trial. The power has to be exercised cautiously and in exceptional situations, where it becomes necessary to do so to provide credibility to the trial. There has to be a real apprehension that there would be miscarriage of justice. (See Nahar Singh Yadav v. Union of India6).
15. Reverting to the facts of the present case in the light of principle of law laid down by the Supreme Court in the abovestated judgments (supra) qua transfer of criminal case from one court to another, it is quite vivid that merely on the basis of apprehension based on conjectures and surmises, transfer cannot be directed unless apprehension is reasonable apprehension and such a power has to be exercised cautiously and in exceptional situations where it becomes necessary in the ends of justice and where there is likely to failure of justice. In the instant case, the petitioner has only stated that four other cases are already pending at Judicial Magistrate First Class, Durg and Family Court, Durg, therefore, this case also be transferred from the Court of Judicial Magistrate First Class, Raipur to the Court of Judicial Magistrate First Class, Durg. No apprehension much less the reasonable apprehension has been expressed or pleaded in the transfer petition, which is sine qua non 6 (2011) 1 SCC 307 10 for granting an application for transfer under Section 407 of the CrPC, particularly criminal case for offence under Section 498A/34 of the IPC is pending consideration before the Judicial Magistrate First Class, Raipur since 25.3.2019 and the petitioner / victim has also joined the proceeding before the said Court and she has been examined and partly crossexamined on 10.1.2020 and thereafter she has filed an application before this Court on 13.7.2021 under Section 407 of the CrPC for transfer of Criminal Case No.2338/2019 from Judicial Magistrate First Class, Raipur to Judicial Magistrate First Class, Durg and more particularly, some cases are also at Raipur and respondents No.3 and 4 are also aged about 60 years and 55 years, they are old persons and as such, mere asking of the petitioner, transfer cannot be ordered under Section 407 of the CrPC in view of principles of law laid down by the Supreme Court in the abovestated judgments (supra).
16. So far as FIR lodged by the petitioner against respondent No.1 for threatening and abusing is concerned. In reply to which, copy of final report has been submitted on behalf of respondents No.1, 3 and 4, which goes to show that no material has been found by the jurisdictional police upon investigation and final report has been submitted by the police for closure of said report.
17. In the matter of Ranjit Singh and another v. Popat Ramabhaji Sonawane and others7 their Lordships of the Supreme Court declined to grant transfer on solitary 7 AIR 1983 SC 292 11 ground that complainant's safety would be in danger and further directed the jurisdictional police to provide safety and security to the petitioner therein for the period required for recording of petitioner's evidence.
18. Following the principle of law laid down by the Supreme Court in Ranjit Singh (supra), the Superintendent of Police, Durg is directed that if the application is made on behalf of the petitioner for police protection for visiting Raipur to record evidence, all arrangement should be made for her safety and security and arrangement is to be made for the period required for recording of the petitioner's evidence. Lastly, learned counsel for respondents No.1, 3 and 4 would submit that respondent No.1 is ready and willing to bear all travelling expenses. In that view of the matter, it is directed that if the petitioner visits Raipur for recording her evidence, Rs.3000/ would be paid to her as travelling expenses on that day before the Court.
19. The transfer petition is disposed off with aforesaid observation / direction.
Sd/-
(Sanjay K.Agrawal) Judge B/-