Aparna Sharma vs Sho & Ors
2011 Latest Caselaw 1324 Del

*           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

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.

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

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,

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
      sk