Smt. Roshan Jahan vs Hasmat Ali @ Chhedu And Another
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Allahabad High Court

Smt. Roshan Jahan vs Hasmat Ali @ Chhedu And Another on 24 May, 2024

Author: Shamim Ahmed

Bench: Shamim Ahmed

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2024:AHC-LKO:39718
 
A.F.R. 
 
Court No. - 27
 

 
Case :- TRANSFER APPLICATION (CRIMINAL) No. - 66 of 2022
 

 
Applicant :- Smt. Roshan Jahan
 
Opposite Party :- Hasmat Ali @ Chhedu And Another
 
Counsel for Applicant :- Subhash Bisaria
 

 
Hon'ble Shamim Ahmed,J.
 

1. Heard Sri Subhash Bisaria, learned counsel for the applicant and Ms. Ankita Tripathi, learned A.G.A. for the State as well as perused the record.

2. This application Under Section 407 Cr.P.C. has been moved on behalf of applicant with a prayer to transfer the Misc. Case No.1151/2019, Misc. Case No.349/2021 and Misc. Case No.942/2021 for recovery of maintenance amount which is pending before the learned Principal Judge, Family Court, Sitapur, arising out of Criminal Case No.3702182/2014, under Section 125 Cr.P.C. and also Misc. Case No.741/2017, under Section 340 Cr.P.C. to the court of learned Principal Judge, Family Court, Lucknow.

3. Learned Counsel for the applicant submits that the applicant is the wife of opposite party No.1 and she lives in Lucknow, Uttar Pradesh and she always lives in fear whenever she has to appear in District Court, Sitapur as she has an apprehension that the opposite party no.1 may harm her. He further submits that opposite party no.1 always threaten her and abused her and her family members whenever, she appeared in the Trial Court, Sitapur. He further submits that proceedings under Section 125 Cr.P.C. are also pending before the Family Court, Sitapur between the opposite party No.1 and the applicant. He further submits that the opposite party No.1 has tried to influence the proceeding of trial, thus, he submits that aforesaid case may be transferred to the Familcy Court, Lucknow so that the applicant may fully cooperate in the conclusion of case without any fear and the case may also be concluded in a fair manner.

4. On the other hand, learned A.G.A. for the State submits that it is just a ploy to delay the proceedings of the aforesaid case. There is no proper ground for transferring of the aforesaid case from one District Court to another District Court. She further submits that the applicant is adopting a delaying tactics as she has not made any averment regarding the injustice been done to her during the course of proceedings. Moreover, it cannot just be the convenience of the applicant but the private opposite party, the witnesses and the prosecution. The larger issue of case normally being conducted by the jurisdictional court must also weigh on the issue. She is having an apprehension that the opposite party may harm, which is not a ground to transfer the case from one District to another. Thus, the instant application being devoid of merits is liable to be rejected.

5. After considering the over all facts and circumstances of the case as well as after hearing the learned counsel for the respective parties, this Court finds that the applicant and opposite party no.1 are contesting cases against each other in the concerned courts and it appears that the applicant has filed the present application only considering her own advantage, which is not a ground to transfer the case from one District to another District.

6. Further, the Hon'ble Supreme Court of India in the case of Rajkumar Sabu vs. Sabu Trade Private Ltd reported in 2021 SCC OnLine SC 378 has been pleased to observe in paragraph Nos.9 and 10, which are reproduced hereinbelow:

"9. Ordinarily, if a Court has jurisdiction to hear a case, the case ought to proceed in that Court only. The proceeding in the Salem Court has not been questioned on the ground of lack of jurisdiction but on the ground contemplated in Section 406 of the1973 Code. Jurisdiction under the aforesaid provision ought to be sparingly used, as held in the case of Nahar Singh Yadav v. Union of India [(2011) 1 SCC 307]. Such jurisdiction cannot be exercised on mere apprehension of one of the parties that justice would not be done in a given case. This was broadly the ratio in the case of Gurcharan Dass Chadha (supra). In my opinion if a Court hearing a case possesses the jurisdiction to proceed with the same, solely based on the fact that one of the parties to that case is unable to follow the language of that Court would not warrant exercise of jurisdiction of this Court under Section 406 of the 1973 Code. Records reveal that aid of translator is available in the Salem Court, which could overcome this difficulty. If required, the petitioner may take the aid of interpreter also, as may be available.

10. The petitioner's plea for transfer is based primarily on convenience. But convenience of one of the parties cannot be a ground for allowing his application. Transfer of a criminal case under Section 406 of the 1973 Code can be directed when such transfer would be "expedient for the ends of justice". This expression entails factors beyond mere convenience of the parties or one of them in conducting a case before a Court having jurisdiction to hear the case. The parties are related, and are essentially fighting commercial litigations filed in multiple jurisdictions. While instituting civil suits, both the parties had chosen fora, some of which were away from their primary places of business, or the main places of business of the defendants. The ratio of the decision of this Court in the case of Mrudul M. Damle (supra) cannot apply in the factual context of this case. In that case, a proceeding pending in the Court of Special Judge, CBI Cases, Rohini Courts, New Delhi was directed to be transferred to the Special Judge, CBI cases, Court of Session, Thane. Out of 92 witnesses enlisted in the charge sheet, 88 were from different parts of Maharashtra. That was a case which this Court found was not "Delhi-centric". The accused persons were based in western part of this Country. It was because of these reasons, the case was directed to be transferred. The circumstances surrounding the case pending in the Salem Court are entirely different. In the case of Rajesh Talwar v. CBI [(2012) 4 SCC 217] it was held: ?

"46. Jurisdiction of a court to conduct criminal prosecution is based on the provisions of the Code of Criminal Procedure. Often either the complainant or the accused have to travel across an entire State to attend to criminal proceedings before a jurisdictional court. In some cases to reach the venue of the trial court, a complainant or an accused may have to travel across several States. Likewise, witnesses too may also have to travel long distances in order to depose before the jurisdictional court. If the plea of inconvenience for transferring the cases from one court to another, on the basis of time taken to travel to the court conducting the criminal trial is accepted, the provisions contained in the Criminal procedure Code earmarking the courts having jurisdiction to try cases would be rendered meaningless. Convenience or inconvenience are inconsequential so far as the mandate of law is concerned. The instant plea, therefore, deserves outright rejection.""

7. Further, the Hon'ble Supreme Court in the case of Satish Jaggi v. State of Chhattisgarh, (2007) 3 SCC 62 has been pleased to observe paragraph Nos. 5, 6 and 7, which are reproduced hereinbelow:-

"5. The law with regard to transfer of cases is well settled. This Court in Gurcharan Das Chadha v. State of Rajasthan [AIR 1966 SC 1418] held that 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. This Court said that 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. This Court further held that 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. The court has further to see whether the apprehension is reasonable or not. This Court also said that to judge the reasonableness of the apprehension, the state of 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.

6. It was further held by this Court in Maneka Sanjay Gandhi v. Rani Jethmalani [(1979) 4 SCC 167 : 1979 SCC (Cri) 934 : AIR 1979 SC 468] that assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or availability of legal services or any like grievance. Something more substantial, more compelling, more imperilling, from the point of view of public justice and its attendant environment, is necessitous if the court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. This Court, in the facts and circumstances of the case, said that the grounds for the transfer have to be tested on this touchstone bearing in mind the rule that normally the complainant has the right to choose any court having jurisdiction and the accused cannot dictate where the case against him should be tried. It further said that even so, the process of justice should not harass the parties and from that angle the court may weigh the circumstances.

7. In Abdul Nazar Madani v. State of T.N. [(2000) 6 SCC 204 : 2000 SCC (Cri) 1048 : AIR 2000 SC 2293] this Court stated that the purpose of the criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. When it is shown that public confidence in the fairness of a trial would be seriously undermined, any party can seek the transfer of a case within the State under Section 407 and anywhere in the country under Section 406 of the Code. 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 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, if any, the witnesses and the larger interest of the society."

8. It is further observed here that from the available material, this Court cannot reasonably conclude that the situation in Sitapur is not conducive for a fair conclusion of case for the applicant. The few instances mentioned by the applicant's counsel may suggest heightened feelings amongst the contesting parties but they do not in my estimation, call for transfer of proceedings to another District. Moreover, it cannot just be the convenience of the applicant but the private opposite party, the witnesses and the prosecution. The larger issue of cases normally being conducted by the jurisdictional court must also weigh on the issue. When relative convenience and difficulties of all the parties involved in the process are taken into account, the conclusion is inevitable that no credible case for transfer of trial to alternative venues outside the District is made out, in the present matter.

9. Thus, in view of the observations/discussions and judgment of the Hon'ble Supreme Court, this Court finds that there is no good ground for transfer of the case from one District Court to the another. It is just a ploy adopted by the applicant to delay the proceedings of the aforesaid case as she is having an apprehension that the opposite party no.1 may harm her, which is not a ground to transfer the case from one District to another, if she is aggrieved, she may approach competent forum for redressal of her grievances. Thus, no interference is required by this Court to entertain the instant application moved under Section 407 Cr.P.C. and the same is liable to be rejected.

10. The present application is, accordingly, rejected.

Order Date :- 24.5.2024

Saurabh