Chattisgarh High Court
Purvi Jain Bohra vs Ritesh Kumar Bohra on 15 July, 2022
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
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
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
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:
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."
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
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
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
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
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
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/-
