Jammu & Kashmir High Court
State Of J&K And Others vs Sarika Dhiman ... on 8 November, 2021
Sr. No. 07
HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
AT JAMMU
CrlM No. 1590/2021
TrP(Crl) No. 31/2019
State of J&K and others .... Applicant(s)
Through :- Mr. Satinder Gupta, Advocate
V/s
Sarika Dhiman ....Non-applicant/Respondent(s)
Through :- Mr. A.K. Sawhney, Advocate
Coram: HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE
ORDER
01. Order passed by this Court on 26.07.2021, whereby, while allowing
the application of Sarika Dhiman for transfer of the criminal challan/charge-
sheet titled State Vs. Rakesh Dhiman and others under Sections 498-A, 323 and
109 RPC, pending in the Court of JMIC (Munsiff Jammu) was ordered to be
transferred to the Court of Chief Judicial Magistrate (CJM) Rajouri, is sought to
be recalled by the petitioners herein on the ground that they were being
represented by Mr. Rahul Bharti, Sr. Advocate and due to COVID-19 Pandemic
there was total disconnect of social and public life and also Court work was
being conducted online. Petitioner was conveyed about the listing of the case in
first week of July, 2021 but he needed to engage services of another Advocate as
Sh. Rahul Bharti was Senior Advocate who expressed his inability to continue to
represent him and other petitioners in the Court. Petitioner No. 2 was COVID
Positive since May, 2021 and was confined to bed and had no time to engage a
counsel for conducting the case. It is on these grounds, the petitioner is seeking
recall or revival of the order, whereby the criminal challan has been ordered to
be transferred to the Court of CJM Rajouri.
02. The case of the petitioners is that since he remained unrepresented and
was not in a position to engage a counsel and in his absence the case has been
ordered to be transferred. He submits that there is defect in procedure, as such,
review application for recall is maintainable and is required to be allowed.
03. I have heard learned counsel for the petitioners as well as have gone
through the grounds taken by the petitioners. It is not only because of the
absence that the case has been transferred but while ordering transfer of case this
Court has also taken into consideration the judgment reported as AIR 2019 SC
1790 the relevant portion of the order is reproduced below:-
"5. It is well settled that in matrimonial disputes, while
considering transfer petitions, the convenience of the wife
has to be preferred over the convenience of the husband.
6. In a recent judgment rendered in the case of Rupali Devi
Vs. State of Uttar Pradesh and others, AIR 2019 SC 1790,
Hon'ble the Supreme Court has held that the wife has a right
to file criminal complaint at any place she resides after
leaving matrimonial home.
7. A perusal of order dated 01.07.2019 passed in a transfer
petition filed by the petitioner seeking transfer of divorce
petition from Jammu to Rajouri reveals that no objection
was conveyed by the husband for transfer of the divorce
petition from Jammu to Rajouri.
8. In view of the above discussion, it would be appropriate
to transfer the criminal challan from the file of Judicial
Magistrate 1st Class (Munsiff), Jammu to the Chief Judicial
Magistrate, Rajouri, who shall try the same itself or assign it
to any other Magistrate of competent jurisdiction.
Ordered accordingly."
04. The petition for transfer had been pending in this Court since 2019 and
could not be decided till 26.07.2021, as such, the grounds taken up by the
petitioner does not warrant or allow this Court to recall or revive the order
passed on 26.07.2021 transferring the case to Rajouri.
05. There is no merit in the instant petition and is, accordingly, dismissed.
(Vinod Chatterji Koul)
Judge
Jammu:
08.11.2021
Angita
Whether the order is speaking ? : Yes/No
Whether the order is reportable ? : Yes/No
