* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(CRL) 312/2011
Decided on 07.3.2011
IN THE MATTER OF :
APARNA SHARMA ..... Petitioner
Through : Mr. R.S. Rathi, Adv. with
petitioner in person.
versus
SHO & ORS ..... Respondents
Through : Mr. Ranjit Kapoor, ASC for State
with SI Ashok Kumar.
CORAM
* HON'BLE MS.JUSTICE HIMA KOHLI
1. Whether Reporters of Local papers may No
be allowed to see the Judgment?
2. To be referred to the Reporter or not? No
3. Whether the judgment should be No
reported in the Digest?
HIMA KOHLI, J. (Oral)
1. The present petition is filed by the petitioner under Articles 226/227 of the Constitution of India read with Section 482 Cr.P.C. praying inter alia for transfer of case No.12194/2010 arising out of FIR No.30/2011 dated 24.2.2011 from the court of the learned ACMM, Karkardooma Courts, Delhi, to any other court of competent jurisdiction.
2. Counsel for the petitioner states that the dispute, subject matter of the aforesaid FIR, is between the petitioner, who is the wife of respondent No.2, and respondents No.3 to 5. The aforesaid FIR is lodged by the W.P.(CRL) 312/2011 Page 1 of 5 petitioner/complainant under Sections 498A/406/34 IPC with PS Mansarover Park, Delhi. He submits that the aforesaid complaint came up for hearing before the learned Metropolitan Magistrate on 29.11.2010, who transferred the same to the court of learned ACMM on the point of jurisdiction.
3. Vide order dated 4.12.2010, after hearing the counsel for the petitioner/complainant on the application filed by the petitioner under Section 156(3) Cr.P.C. for further investigation, the learned ACMM dismissed the same and the matter was adjourned to 24.1.2011 for recording of the complainant's evidence. On 24.1.2011, the complainant sought an adjournment on the ground that her counsel was unavailable and as a result, the matter was adjourned to 29.4.2011.
4. It is stated that on 2.12.2010, the petitioner/complainant had filed an application for transfer of the case from the court of learned ACMM to another Court. In the aforesaid application, the ground taken for seeking transfer of the case from the court of the learned ACMM to another court was that it had come to the knowledge of the petitioner that the son-in-law of respondent No.4 was a friend of the learned ACMM and hence, an apprehension was expressed by the petitioner/complainant that she would not get fair and impartial justice from the said learned ACMM. The aforesaid application came up for hearing before the Sessions Court on 3.12.2010 and notice was issued to the respondents returnable on 15.12.2010. A copy of the order 3.12.2010 is handed over by the learned counsel for the petitioner/complainant and the same is taken on record. In the meantime, comments of the learned ACMM were called for by the Sessions Court, which were forwarded by him on 10.12.2010.
W.P.(CRL) 312/2011 Page 2 of 5
5. The stand of the learned ACMM in his comments was that he was unaware of any person by the name of Mr. Vijay Mishra, an advocate, stated to be the son-in-law of respondent No.4, much less such a person being a close friend or having any relationship with him, to be able to influence him. The learned ACMM also mentioned that on 4.12.2010 when arguments were addressed on the application under Section 156(3) Cr.P.C., the petitioner/complainant failed to inform him about the pendency of the application for transfer of the case before the Sessions Court. In any case, it is undisputed that on 4.12.2010, the petitioner/complainant did not inform the learned ACMM about the order dated 3.12.2010 passed by the learned Sessions Judge. Based on the aforesaid comments of the learned ACMM, vide order dated 8.2.2011, the Sessions Court dismissed the application for transfer filed by the petitioner/complainant.
6. In the course of arguments, counsel for the petitioner/ complainant draws the attention of this Court to the order dated 24.1.2011, wherein the learned ACMM granted an adjournment to the petitioner/complainant on the ground that her counsel was not available, and listed the matter on 29.1.2011 for pre-summoning evidence. He states that the aforesaid adjournment has resulted in the petitioner's case being unduly delayed. A perusal of the aforesaid order clearly shows that the court gave an adjournment to the petitioner/complainant only at her request on the ground that her counsel was not available. It therefore does not lie in the mouth of the petitioner to claim that delay was caused, when she herself sought an adjournment and the matter was adjourned to 29.1.2011.
7. Counsel for the petitioner further states that the order dated W.P.(CRL) 312/2011 Page 3 of 5 4.12.2010 passed by the learned ACMM declining the application of the petitioner/complainant under Section 156 (3) Cr.P.C. was erroneous. If this is the case, the petitioner/complainant had the remedy of filing an appeal against the said order, which she has admittedly chosen not to exhaust. But it cannot be a ground for seeking transfer of the case.
8. Further, in the course of arguments, counsel for the petitioner/ complainant contends that the petitioner/complainant has also come to know that the said learned ACMM had once worked in the same office as an associate/junior of Mr. Vijay Mishra, Advocate in the Tis Hazari Courts, which fact, he states, the petitioner/complainant has mentioned in the present petition. Pertinently, the aforesaid ground was not taken by the petitioner/complainant in her application seeking transfer of the petition from the court of learned ACMM. Further, admittedly, the said submission was not made before the Sessions Court, even when the application for transfer was argued and came to be dismissed on 8.2.2011.
9. From all the above facts and circumstances, what emerges clearly is that the petitioner/complainant is trying to use every rule in the book to seek transfer of her case from the court of the learned ACMM. Such persistent applications on the part of the petitioner can only be treated as an attempt on her part to avoid an inconvenient court. It is evident that merely because her application under Section 156(3) Cr.P.C. was rejected by the learned ACMM, she is seeking transfer of the case to another court, on a baseless apprehension of not getting a positive order in the future from the said learned ACMM. Records reveal that the allegations made in the application for transfer were duly considered by the learned Sessions Judge, W.P.(CRL) 312/2011 Page 4 of 5 who had called for comments from the learned ACMM, and after examining the same, had passed the order dated 8.2.2011. In the present petition, the petitioner is again trying to cast aspersions on the integrity of the learned ACMM, thus seeking to tarnish his image, which is impermissible.
10. In view of the aforesaid facts and circumstances, this Court is not inclined to interfere with the aforesaid order dated 8.2.2011. The present petition is dismissed as devoid of merits with costs of `1,000/- to be deposited with the Delhi High Court Legal Services Committee within 4 weeks.
HIMA KOHLI,J
MARCH 07, 2011
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