Bombay High Court
Chhayabai W/O. Kartarsing Chittodiya vs Kaartarsing S/O. Devisingh Chittodiya on 7 June, 2019
Author: A.M. Dhavale
Bench: A.M. Dhavale
1 921-CRI.APPLN-3092-2018
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 3092 OF 2018
Sow. Chhayabai w/o Kartarsing Chittodiya ... Applicant
Versus
Kaartarsing S/o Devisingh Chittodiya and Ors. ...Respondents
Mr. G.G. Kadam, Advocate Applicant
Mr. A.A. Jagatkar, Advocate for Respondents/State
CORAM : A.M. DHAVALE, J.
` DATE: 7th JUNE, 2019
ORAL ORDER :
1. This is an application under section 407 of Cr.P.C. by wife, the witness in Regular Criminal Case No. 2504/2017 instituted against the respondents under section 498-A, 323, 504, 506 read with 34 IPC.
2. The learned Advocate for the applicant Mr. Kadam argued that the original FIR was lodged at Lonikand, Tal. Haveli, Dist. Pune, and the same was transferred to Aurangabad, and thereafter, the charge sheet came to be filed at Karmad Police Station, Aurangabad. The applicant is residing at Pune. She is suffering from mental ill-health and she has minor children. It is not possible for her to attend the case at Aurangabad, and therefore, the case be transferred from Aurangabad to Pune.
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3. Per contra, learned Advocate Mr. N.R. Thorat holding for Advocate Mr. Kadlag submitted that the applicant has no permanent place of residence. She has shown different addresses of different types. At the time of lodging FIR, she shows that she was residing at Kolhapur and also at Karmad. She is now claiming that she is residing at Pune. She also submitted that respondent Nos. 2 and 3 are persons aged 64 and 69 years respectively. It is difficult for them to attend each and every date in the case in the Court at Pune. Hence, the application.
4. Learned Advocate for the applicant has relied on Mrs. Preeti Kharat Vs. Swapnil Kharat and Ors. Criminal Complaint No. 1/2017 (Nagpur) decided on 26th September, 2017, Smt. Anusuya Sitha Vs. State of Orissa, TRPCRL No. 89/2014 decided by Orissa High Court on 16th September, 2016 and Chhayaben Vs. State of Gujrat, Misc. Application No. 14818/2010 decided by Gujrath High Court on 28th February, 2012 to submit that in similar circumstances, the cases were transferred to the place of residence of wife. He also argued that as held in Preeti Kharat's case, the respondent/accused Nos. 2 and 3 can claim exemption from personal appearance from the concerned Magistrate.
5. I have considered the submissions made by learned Advocates and the ruling cited.
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6. Section 407 of Cr. P.C. empowers this Court to transfer the cases from one Court to another on following grounds :-
(i) Wherein fair and impartial inquiry or trial is not possible.
(ii) To meet with the question of law with unusual difficulty is likely to arise.
(iii) General convenience of the parties or witnesses,
(iv) Or it is expedient for the ends of justice.
7. It is not disputed that this is the only proceeding pending between the parties. The husband and wife were residing at Aurangabad. The respondent has shown her residence in the FIR as residing at Kolhapur. The learned Advocate has relied on prescriptions given to the appellant by the consultant psychiatrist.
8. It is common knowledge that in a criminal case, the accused are supposed to attend the case on each and every date whereas the informant and the witnesses are required to attend only for the purpose of leading evidence. Normally, they can be examined and relived on a single day, but even if it is assumed that the matter cannot be taken up on 1st day the attendance of the witnesses, the informant and witnesses in the court will be not for more than 2 to 3 days. While deciding the application under section 407 Cr. P.C. the mutual convenience of both the parties should be considered. In the ::: Uploaded on - 11/06/2019 ::: Downloaded on - 14/07/2019 19:47:49 ::: 4 921-CRI.APPLN-3092-2018 present case, all the accused persons are residing at Aurangabad. Two of them are senior citizens aged 64 and 69 years respectively. It will be very hard for them to attend several dates in the criminal case at Pune as accused persons. On the contrary, the informant will be required to attend the Court at the most 2/3 times. In such circumstances, normally, the balance of convenience is in favour of the accused. Besides, the Police witnesses are entitled for TA and DA against the accused. However, the accused have to bear travelling expenses for attending the Court.
9. The applicant has not filed the certificate of psychiatrist showing the nature of her illness, the condition of her mind and ability to attend the matter in the court. Even if it is assumed that she is suffering from mental illness, her examination can be taken by VC or she might attend the Court on one or two dates and direction can be issued to the Court to see that her evidence is recorded on the date of her appearance.
10. Thus, normally, when there is only one criminal case pending, the convenience of the accused persons should be taken into consideration and not the convenience of the witnesses.
11. In Preeti Kharat's case, one regular criminal case under section 498-A and one DV case were filed before the Court at Buldhana. Both the cases were to be transferred. The accused ::: Uploaded on - 11/06/2019 ::: Downloaded on - 14/07/2019 19:47:49 ::: 5 921-CRI.APPLN-3092-2018 persons were not residing at Buldhana. They were residing at Yeotmal and one was residing at Aurangabad while informant was residing at Kalyan. In DV Act case, the applicant has to attend case on each and every date. Once it was found necessary to transfer the DV case, it was convenient to transfer the regular criminal case also along with DV case as Buldhana was not convenient for both the parties. The said case can be distinguished on facts.
12. In Anusuya Sitha's case, before the Orissa High Court, the appellant was residing with her parents at Dhenkanal. Maintenance proceedings filed by her was pending before the Family Court in the same town. The divorce petition was also filed in Dhenkanal, and there was no objection for transfer of the case from Bhubaneswar to Bhim Kana. The said case can be also distinguished on same facts.
13. In Chhayaben's case, the charge sheet was filed against the accused in Umreth Court. The wife sought transfer of the case from Umreth to Surat stating that she was residing at Olpad, Dist. Surat. That time, her husband was residing at U.K. There were threats given to her by respondents while she was attending the Court case in Umreth.
14. Considering the said case, it was found expediency to end the justice to transfer the said case to Surat. The facts in all these cases are quite different. The circumstances, this application cannot ::: Uploaded on - 11/06/2019 ::: Downloaded on - 14/07/2019 19:47:49 ::: 6 921-CRI.APPLN-3092-2018 be allowed. However, direction can be issued to the concerned Judicial Magistrate to as far as possible to record the evidence of the informant by VC and if it is not possible, the summons be issued to the informant of a date on which everybody will be ready to record her evidence and complete the evidence. The learned Magistrate shall take all precautions to see that the informant Chhayabai is not required to attend his Court again and again. In Regular Criminal Case, even if the personal appearance of the accused persons is exempted on non-considering the dates, they will be required to attend for recording plea, recording statement under section 313 and for giving instructions at the time of depositions. Granting of exemptions is also at the discretion of the Court.
15. With these observations, the application is dismissed.
16. Authenticated copy of the order be forwarded to the concerned Court.
[ A. M. DHAVALE ] JUDGE mta ::: Uploaded on - 11/06/2019 ::: Downloaded on - 14/07/2019 19:47:49 :::