Jammu & Kashmir High Court
Amarjeet Singh Sudan And Another vs Diksha Singh And Another on 10 May, 2023
IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH AT JAMMU
CRTA No. 43/2018 c/w
Trp(Crl) No. 25/2022
Amarjeet Singh Sudan and another
Jaslok Singh
...petitioners
Through: -Mr.C.S.Gupta Advocate
Mr. Pankaj Basotra Advocate
vice
Mr. Ashish Singh Kotwal Advocate
Vs.
Diksha Singh and another
...respondents
Through: -Mr. Sachin Dev Singh Advocate.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1 By this common order, two transfer applications, one filed
by the petitioners Amarjeet Singh Sudan and Jasbir Kour and the other
filed by the petitioner Jaslok Singh, are proposed to be disposed of.
2 It appears that respondent No.1 Diksha Singh has filed a
petition under the provisions of Jammu and Kashmir Protection of
Women from Domestic Violence Act, 2010 (hereinafter referred to as
the 'DV Act.) against the petitioners before the Court of Judicial
Magistrate First Class (Additional Munsiff), Srinagar. The respondent
Diksha Singh happens to be the wife of the petitioner Jaslok Singh,
whereas, the petitioners Amarjeet Singh and Jasbir Kour happen to be
the parents of petitioner Jaslok Singh and parents-in-law of respondent
Diksha Singh.
3 The petitioners, after narrating their side of the story as
regards the merits of the petition filed by respondent Diksha Singh
before the learned trial Magistrate, have sought transfer of the
proceedings from the Court of Judicial Magistrate First Class
(Munsiff), Srinagar to any other Court of competent jurisdiction at
Jammu. According to the petitioners Amarjeet Singh and Jasbir Kour,
they are residing at Jammu and they are not used to cold weather of
Sriangar, particularly, because they are suffering from various ailments.
They have further submitted that the respondent Diksha Singh, in order
to harass them, has filed the proceedings at Srinagar. It has been further
submitted that no prejudice would be caused to the said respondent in
case the proceedings are transferred to Jammu.
4 The petitioner Jaslok Singh has, after narrating his version
regarding merits of the case, sought transfer of the proceedings to
Jammu on the ground that the Court at Srinagar has no jurisdiction to
entertain the petition filed by his wife as they have never permanently
or temporarily resided at Srinagar. It has been further submitted that
petitioner Jaslok Singh is a resident of United Kingdom and he has no
relative or friend in Srinagar to follow the proceedings before the trial
Magistrate. It has been submitted that the proceedings have been
initiated by respondent Diksha Singh at Srinagar only to harass him and
that if the same are transferred to Jammu, no prejudice would be caused
to her.
5 The respondent Diksha Singh has filed a reply to the
instant transfer application in which it has been contended that after her
marriage with the petitioner Jaslok Singh, she was subjected to torture,
harassment and humiliation by the petitioners. While denying the
allegations made by the petitioners on merits of the case, respondent
Diksha SIngh has submitted that learned trial Magistrate has, after
deriving satisfaction as to veracity of the acts of domestic violence
committed against her, passed an interim monetary compensation of
Rs.20000/- per month in her favour in terms of order dated 22.10.2018,
but the petitioner Jaslok Singh has not paid even a penny to her. It has
been submitted that the instant transfer petitions are merely a ploy to
evade execution of the orders of learned trial Magistrate. It has been
further submitted that the petitioner Jaslok Singh has already filed a
petition under Section 482 CrPC before Srinagar of the High Court,
challenging the proceedings which are subject of the instant transfer
applications. It has also been submitted that sister-in-law of the
petitioner Jaslok Singh has also challenged the proceedings of the trial
Magistrate by filing a petition under Section 482 Cr.PC before Srinagar
wing of the High Court. It has been submitted that, in case the
proceedings are transferred to Jammu, it will cause grave prejudice to
the respondent as she has no accommodation at Jammu. Regarding the
contention of the petitioner Jaslok Singh relating to jurisdiction of the
Court at Srinagar, the respondent Diksha Singh has placed on record a
copy of order dated 11.10.2021 passed by the learned Judicial
Magistrate First Class (Additional Munsiff) Srinagar whereby the
learned Magistrate has held that the said Court has jurisdiction to
entertain the petition filed by the respondent Diksha Singh under the
provisions of D.V Act.
6 I have heard learned counsel for the parties and perused
the record of the case.
7 Section 407 of Cr.P.C vests powers with the High Court to
transfer cases and appeals. Clause (c) of sub-Section (1) of the said
provision provides that the order of transfer can be made if the same is
required under any provision of the Code or the same will tend to the
general convenience of the parties or witnesses or is expedient for the
ends of justice.
8 In light of the aforesaid position of law, let us now analyze
the facts of the instant case and so as to determine, whether or not, the
petitioners have carved out a case in their favour for transfer of the
proceedings initiated by the respondent Diksha Singh against them
before Judicial Magistrate First Class (Additional Munsiff) Srinagar.
9 As already noted, according to the petitioners, the
proceedings have been initiated by respondent Diksha Singh at Srinagar
only to harass them. It has been submitted that the petitioners Amarjit
Sigh and Jasbir Kour being old aged cannot travel to Srinagar in cold
weather. An additional ground has been raised by Mr. Jaslok Singh, the
husband of respondent Diksha Singh that the Court at Srinagar does not
have jurisdiction to entertain the petition filed by his wife.
10 So far as the jurisdiction of the Court at Srinagar is
concerned, the said issue has already been decided by the learned trial
Magistrate in favour of respondent Diksha Singh and, unless, the said
finding is set aside or reversed by a superior Forum, it cannot be stated
that the Court at Srinagar does not have jurisdiction to proceed in the
matter.
11 The contention of the petitioners Amarjeet Singh and
Jasbir Kour that, in the cold weather, it will not be possible for them to
travel to sriangar, is also without any merit, for the reason that the
proceedings under Section 12 of the DV Act cannot be equated with
lodging of a criminal complaint or initiation of prosecution. So, once
summons are issued by the Magistrate in such proceedings, it is not
necessary for the petitioners Amarjeet Singh and Jasbir Kour to appear
in person before the Magistrate and to seek bail from the said Court.
The proceedings under Section 12 of the DV Act are not, in strict
sense, criminal in nature, as such, the petitioners are not required to
appear in person before the trial Magistrate. In fact, the trial Magistrate
can even alter/revoke his orders, if the petitioners, after putting in
appearance before the said Magistrate, are able to show to the
Magistrate that no case is made out against them.
12 The Supreme Court in the case of Kamatchi vs Lakshmi
Narayanan, 2022 SCC Online 446 has observed that the scope of
notice under Section 12 of the Act is to call for a response from the
respondent in terms of the Statute, so that, after considering rival
submissions, appropriate orders can be passed. Therefore, it is not
necessary for the petitioners to appear before the trial Magistrate in
person, unless specifically directed to do so in the event of a necessity.
They can very well be represented by a counsel before the said Court.
Thus, the ground for transfer of the proceedings urged by the
petitioners Amarjeet Singh and Jasbir Kour on this score is without any
merit.
13 Coming to the convenience of the parties, the petitioner
Jaslok Singh is admittedly residing in United Kingdom, therefore, it
will make no difference for him to contest the case either at Srinagar or
at Jammu. So far as the petitioners Amarjit Singh and Jasbir Kour are
concerned, as already noted, they are not required to appear in person
before the trial Magistrate and they can very well engage a counsel at
Srinagar to represent them. On the other hand, if the proceedings are
transferred to Jammu, respondent Diksha Singh will be put to grave
prejudice, as, according to her, she has no accommodation at Jammu
and for a woman, who has been deserted by her husband, it would be
very difficult to engage a counsel in a place like Jammu which is alien
to her.
14 For the foregoing reasons, the instant transfers
applications lack merit and are, accordingly, dismissed.
15 Interim directions, if any, shall stand vacated and the
learned trial Magistrate is at liberty to proceed further in the matter in
accordance with law
A copy of this order be sent to the trial Magistrate.
(Sanjay Dhar)
Judge
Jammu
10.05.2023
"Sanjeev, PS" Whether the order is speaking: Yes
Whether the order is reportable: Yes
